EXHIBIT 4.5
--------------------------------------------------------------------------------
DIGITALNET, INC.
9% SENIOR NOTES DUE 2010
----------
INDENTURE
Dated as of July 3, 2003
----------
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
TRUSTEE
----------
--------------------------------------------------------------------------------
CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
--------------- -----------------
310(a)(1)...............................................................................7.10
(a)(2)...............................................................................7.10
(a)(3)...............................................................................N.A.
(a)(4)...............................................................................N.A.
(a)(5)...............................................................................7.10
(b)..................................................................................7.03, 7.10
(c)..................................................................................N.A.
311(a)..................................................................................7.11
(b)..................................................................................7.11
(c)..................................................................................N.A.
312(a)..................................................................................2.06
(b)..................................................................................12.03
(c)..................................................................................12.03
313(a)..................................................................................7.06
(b)(1)...............................................................................N.A.
(b)(2)...............................................................................7.06, 7.07
(c)..................................................................................7.06, 12.02
(d)..................................................................................7.06
314(a)..................................................................................12.05, 4.04
(b)..................................................................................N.A.
(c)(1)...............................................................................12.04
(c)(2)...............................................................................12.04
(c)(3)...............................................................................N.A.
(d)..................................................................................N.A.
(e)..................................................................................12.05
(f)..................................................................................N.A.
315(a)..................................................................................7.01
(b)..................................................................................7.05
(c)..................................................................................7.01
(d)..................................................................................7.01
(e)..................................................................................6.11
316(a) (last sentence)..................................................................2.10
(a)(1)(A)............................................................................6.03
(a)(1)(B)............................................................................N.A.
(a)(2)...............................................................................N.A.
(b)..................................................................................6.07
----------
N.A. means not applicable.
* This Cross-Reference Table is not part of the
Indenture.
(c)..................................................................................12.14
317(a)(1)...............................................................................6.08
(a)(2)...............................................................................6.09
(b)..................................................................................2.05
318(a)..................................................................................12.01
(b)..................................................................................N.A.
(c)..................................................................................12.01
TABLE OF CONTENTS
PAGE
----
ARTICLE ONE
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions......................................................................1
Section 1.02. Other Definitions...............................................................25
Section 1.03. Incorporation by Reference of Trust Indenture Act...............................26
Section 1.04. Rules of Construction...........................................................26
ARTICLE TWO
THE NOTES
Section 2.01. Form and Dating.................................................................27
Section 2.02. Execution and Authentication....................................................28
Section 2.03. Methods of Receiving Payments on the Notes......................................29
Section 2.04. Registrar and Paying Agent......................................................29
Section 2.05. Paying Agent to Hold Money in Trust.............................................29
Section 2.06. Holder Lists....................................................................30
Section 2.07. Transfer and Exchange...........................................................30
Section 2.08. Replacement Notes...............................................................43
Section 2.09. Outstanding Notes...............................................................43
Section 2.10. Treasury Notes..................................................................44
Section 2.11. Temporary Notes.................................................................44
Section 2.12. Cancellation....................................................................44
Section 2.13. Defaulted Interest..............................................................44
Section 2.14. CUSIP and ISIN Numbers..........................................................45
ARTICLE THREE
REDEMPTION AND OFFERS TO
PURCHASE
Section 3.01. Notices to Trustee..............................................................45
Section 3.02. Selection of Notes to Be Redeemed...............................................45
Section 3.03. Notice of Redemption............................................................46
Section 3.04. Effect of Notice of Redemption..................................................47
Section 3.05. Deposit of Redemption Price.....................................................47
Section 3.06. Notes Redeemed in Part..........................................................47
Section 3.07. Optional Redemption.............................................................47
Section 3.08. Repurchase Offers...............................................................48
ARTICLE FOUR
COVENANTS
Section 4.01. Payment of Notes................................................................50
Section 4.02. Maintenance of Office or Agency.................................................50
Section 4.03. Reports.........................................................................51
Section 4.04. Compliance Certificate..........................................................51
Section 4.05. Taxes...........................................................................52
Section 4.06. Stay, Extension and Usury Laws..................................................52
Section 4.07. Restricted Payments.............................................................52
Section 4.08. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.......56
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock......................58
Section 4.10. Asset Sales.....................................................................61
Section 4.11. Transactions with Affiliates....................................................63
Section 4.12. Liens...........................................................................65
Section 4.13. [INTENTIONALLY OMITTED..........................................................65
Section 4.14. Offer to Repurchase upon a Change of Control....................................65
Section 4.15. [INTENTIONALLY OMITTED..........................................................66
Section 4.16. Designation of Restricted and Unrestricted Subsidiaries.........................66
Section 4.17. Payments for Consent............................................................67
Section 4.18. Additional Note Guarantees......................................................67
Section 4.19. Sale and Leaseback Transactions.................................................67
ARTICLE FIVE
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets.........................................68
Section 5.02. Successor Corporation Substituted...............................................69
ARTICLE SIX
DEFAULTS AND REMEDIES
Section 6.01. Events of Default...............................................................69
Section 6.02. Acceleration....................................................................71
Section 6.03. Other Remedies..................................................................71
Section 6.04. Waiver of Past Defaults.........................................................72
Section 6.05. Control by Majority.............................................................72
Section 6.06. Limitation on Suits.............................................................72
Section 6.07. Rights of Holders of Notes to Receive Payment...................................73
Section 6.08. Collection Suit by Trustee......................................................73
Section 6.09. Trustee May File Proofs of Claim................................................73
Section 6.10. Priorities......................................................................74
Section 6.11. Undertaking for Costs...........................................................74
ARTICLE SEVEN
TRUSTEE
Section 7.01. Duties of Trustee...............................................................74
Section 7.02. Certain Rights of Trustee.......................................................75
Section 7.03. Individual Rights of Trustee....................................................76
Section 7.04. Trustee's Disclaimer............................................................76
Section 7.05. Notice of Defaults..............................................................77
Section 7.06. Reports by Trustee to Holders of the Notes......................................77
Section 7.07. Compensation and Indemnity......................................................77
Section 7.08. Replacement of Trustee..........................................................78
Section 7.09. Successor Trustee by Merger, Etc................................................79
Section 7.10. Eligibility; Disqualification...................................................79
Section 7.11. Preferential Collection of Claims Against Issuer................................79
ARTICLE EIGHT
DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance........................79
Section 8.02. Legal Defeasance and Discharge..................................................80
Section 8.03. Covenant Defeasance.............................................................80
Section 8.04. Conditions to Legal or Covenant Defeasance......................................81
Section 8.05. Deposited Money and Government Securities to Be Held in Trust;
Other Miscellaneous Provisions..............................................82
Section 8.06. Repayment to the Issuer.........................................................83
Section 8.07. Reinstatement...................................................................83
ARTICLE NINE
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.............................................83
Section 9.02. With Consent of Holders of Notes................................................84
Section 9.03. Compliance with Trust
Indenture Act.............................................86
Section 9.04. Revocation and Effect of Consents...............................................86
Section 9.05. Notation on or Exchange of Notes................................................86
Section 9.06. Trustee to Sign Amendments, Etc.................................................86
ARTICLE TEN
NOTE GUARANTEES
Section 10.01. Guarantee......................................................................87
Section 10.02. Limitation on Guarantor Liability..............................................88
Section 10.03. Execution and Delivery of Note Guarantee.......................................88
Section 10.04. Guarantors May Consolidate, Etc., on Certain Terms.............................89
Section 10.05. Release of Subsidiary Guarantor................................................90
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
Section 11.01. Satisfaction and Discharge.....................................................91
Section 11.02. Deposited Money and Government Securities to Be Held in Trust;
Other Miscellaneous Provisions..........................................92
Section 11.03. Repayment to the Issuer........................................................92
ARTICLE TWELVE
MISCELLANEOUS
Section 12.01. Trust
Indenture Act Controls...................................................92
Section 12.02. Notices........................................................................92
Section 12.03. Communication by Holders of Notes with Other Holders of Notes..................94
Section 12.04. Certificate and Opinion as to Conditions Precedent.............................94
Section 12.05. Statements Required in Certificate or Opinion..................................94
Section 12.06. Rules by Trustee and Agents....................................................94
Section 12.07. No Personal Liability of Directors, Officers, Employees and Stockholders.......95
Section 12.08. Governing Law..................................................................95
Section 12.09. Consent to Jurisdiction........................................................95
Section 12.10. No Adverse Interpretation of Other Agreements..................................95
Section 12.11. Successors.....................................................................95
Section 12.12. Severability...................................................................95
Section 12.13. Counterpart Originals..........................................................96
Section 12.14. Acts of Holders................................................................96
Section 12.15. Benefit of
Indenture...........................................................97
Section 12.16. Table of Contents, Headings, Etc...............................................97
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED
INVESTOR
Exhibit E FORM OF NOTATION OF GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL
INDENTURE
INDENTURE dated as of July 3, 2003 among DigitalNet, Inc., a
Delaware corporation (the "ISSUER"), the initial Guarantors (as defined below)
listed on the signature pages hereto and ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, a national banking association, as trustee.
The Issuer has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its 9% Senior Notes
due 2010 to be issued in one or more series as provided in this Indenture. The
initial Guarantors have duly authorized the execution and delivery of this
Indenture to provide for a guarantee of the Notes and of certain of the Issuer's
obligations hereunder. All things necessary to make this Indenture a valid
agreement of the Issuer and the initial Guarantors, in accordance with its
terms, have been done.
The Issuer, the Guarantors and the Trustee (as defined below)
agree as follows for the benefit of each other and for the equal and ratable
benefit of the Holders (as defined below) of the 9% Senior Notes due 2010:
ARTICLE ONE
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. DEFINITIONS.
"144A GLOBAL NOTE" means a Global Note substantially in the form
of Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that shall be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"ACQUIRED DEBT" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time
such other Person is merged with or into or becomes a
Subsidiary of such specified Person, whether or not such
Indebtedness is incurred in connection with, or in
contemplation of, such other Person merging with or into,
or becoming a Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"ADDITIONAL NOTES" means an unlimited maximum aggregate principal
amount of Notes (other than the Notes issued on the date hereof) issued under
this Indenture in accordance with Sections 2.02 and 4.09 hereof.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control," as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities, by
agreement or otherwise; PROVIDED that beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" shall have correlative meanings.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer or exchange.
"ASSET SALE" means:
(1) the sale, lease (other than an operating lease entered
into in the ordinary course of business), conveyance or
other disposition of any assets or rights; PROVIDED that
the sale, conveyance or other disposition of all or
substantially all of the assets of DigitalNet Holdings
and its Subsidiaries or the Issuer and its Restricted
Subsidiaries, in each case, taken as a whole, shall be
governed by Section 4.14 and/or Section 5.01 and not by
Section 4.10; and
(2) the issuance of Equity Interests by any of the Issuer's
Restricted Subsidiaries or the sale of Equity Interests
in any of its Subsidiaries.
Notwithstanding the preceding, the following items shall not be
deemed to be Asset Sales:
(1) any single transaction or series of related transactions
that involves assets having a fair market value of less
than $3.0 million;
(2) a transfer of assets between or among the Issuer and its
Restricted Subsidiaries;
(3) an issuance of Equity Interests by a Restricted
Subsidiary to the Issuer or to another Restricted
Subsidiary;
(4) the sale, license or lease of equipment, inventory,
accounts receivable, intellectual property or other
assets in the ordinary course of business;
(5) the sale or other disposition of cash or Cash
Equivalents;
(6) a Restricted Payment that is permitted by Section 4.07;
(7) the sale of damaged, obsolete, unusable or worn out
equipment or equipment that is no longer necessary in the
conduct of the business of the Issuer and its Restricted
Subsidiaries or property acquired in connection with an
acquisition and that is disposed of, in each case, in the
ordinary course of business;
2
(8) any sales associated with or part of an early termination
fee or buyout of the assets owned by the Issuer or any
Restricted Subsidiary upon termination of a contract with
a third party; and
(9) sales of assets by the Issuer and its Restricted
Subsidiaries consisting of leases and subleases of real
property or office space solely to the extent that such
real property is not necessary for the normal conduct of
operations of the Issuer and its Restricted Subsidiaries.
"ATTRIBUTABLE DEBT" in respect of a sale and leaseback
transaction means, at the time of determination, as calculated in accordance
with GAAP, the present value of the obligation of the lessee for net rental
payments during the remaining term of the lease included in such sale and
leaseback transaction, including any period for which such lease has been
extended or may, at the option of the lessor, be extended. Such present value
shall be calculated using a discount rate equal to the rate of interest implicit
in such transaction, determined in accordance with GAAP.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors.
"BENEFICIAL OWNER" has the meaning assigned to such term in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as that term is used in Section
13(d)(3) of the Exchange Act), such "person" shall be deemed to have beneficial
ownership of all securities that such "person" has the right to acquire by
conversion or exercise of other securities, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition. The terms "BENEFICIALLY OWNS" and "BENEFICIALLY OWNED" shall have a
corresponding meaning.
"BOARD OF DIRECTORS" means:
(1) with respect to a corporation, the board of directors of
the corporation;
(2) with respect to a partnership, the Board of Directors of
the general partner of the partnership; and
(3) with respect to any other Person, the board or committee
of such Person serving a similar function.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Issuer to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification.
"BROKER-DEALER" has the meaning set forth in the Registration
Rights Agreement.
"BUSINESS DAY" means any day other than a Legal Holiday.
3
"CAPITAL LEASE OBLIGATION" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at that time be required to be capitalized on a balance sheet in
accordance with GAAP.
"CAPITAL STOCK" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and
all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability
company, partnership or membership interests (whether
general or limited); and
(4) any other interest or participation that confers on a
Person the right to receive a share of the profits and
losses of, or distributions of assets of, the issuing
Person.
"CASH EQUIVALENTS" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality thereof (PROVIDED that the full faith and
credit of the United States is pledged in support
thereof) having maturities of not more than six months
from the date of acquisition;
(3) deposit accounts, certificates of deposit and eurodollar
time deposits with maturities of one year or less from
the date of acquisition, bankers' acceptances with
maturities not exceeding one year and overnight bank
deposits, in each case, with any domestic commercial bank
having capital and surplus in excess of $500.0 million;
(4) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in
clauses (2) and (3) above entered into with any financial
institution meeting the qualifications specified in
clause (3) above;
(5) commercial paper having the highest rating obtainable
from ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's
Rating Services and in each case maturing within nine
months after the date of acquisition;
(6) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in
clauses (1) through (5) of this definition; and
4
(7) in the case of Foreign Subsidiaries, substantially
similar instruments to those set forth in clauses (1)
through (6) above.
"CHANGE OF CONTROL" means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or
other disposition (other than by way of merger or
consolidation), in one or a series of related
transactions, of all or substantially all of the
properties or assets of DigitalNet Holdings and its
Subsidiaries or the Issuer and its Restricted
Subsidiaries, in each case, taken as a whole, to any
"person" (as that term is used in Section 13(d)(3) of the
Exchange Act) other than the Principals or Related
Parties of the Principals;
(2) the adoption of a plan relating to the liquidation or
dissolution of DigitalNet Holdings or the Issuer;
(3) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), other than
the Principals and their Related Parties, becomes the
Beneficial Owner, directly or indirectly, of more than
50% of the voting power of all classes of Voting Stock of
DigitalNet Holdings or the Issuer;
(4) the first day on which a majority of the members of the
Board of Directors of DigitalNet Holdings or the Issuer
are not Continuing Directors; or
(5) DigitalNet Holdings or the Issuer consolidates with, or
merges with or into, any Person, or any Person
consolidates with, or merges with or into the Issuer, in
any such event pursuant to a transaction in which any of
the outstanding Voting Stock of DigitalNet Holdings or
the Issuer or such other Person is converted into or
exchanged for cash, securities or other property, other
than any such transaction where (A) the Voting Stock of
DigitalNet Holdings or the Issuer outstanding immediately
prior to such transaction is converted into or exchanged
for Voting Stock (other than Disqualified Stock) of the
surviving or transferee Person constituting a majority of
the outstanding shares of such Voting Stock of such
surviving or transferee Person (immediately after giving
effect to such issuance) and (B) immediately after such
transaction, no "person" or "group" (as such terms are
used in Section 13(d) and 14(d) of the Exchange Act),
other than the Principals and their Related Parties,
becomes, directly or indirectly, the Beneficial Owner of
more than 50% of the voting power of all classes of
Voting Stock of DigitalNet Holdings, the Issuer or such
other Person.
"CLASS B REDEEMABLE CONVERTIBLE PREFERRED STOCK" means the Class
B Redeemable Convertible Preferred Stock, $0.01 par value per share, of
DigitalNet Holdings.
"CLEARSTREAM" means Clearstream Banking, societe anonyme,
Luxembourg (formerly Cedel Bank, societe anonyme), and any successor thereto.
5
"CLOSING DATE" means July 3, 2003.
"COMMODITY PRICE AGREEMENT" means, in respect of a Person, any
forward contract, commodity swap agreement, commodity option agreement or other
similar agreement or arrangement designed to fix or hedge commodity price risk.
"CONSOLIDATED CASH FLOW" means, with respect to any specified
Person for any period, the Consolidated Net Income of such Person for such
period PLUS:
(1) provision for taxes based on income or profits (and any
franchise, single business, uniform or withholding taxes
imposed in lieu of income taxes) of such Person and its
Restricted Subsidiaries for such period, to the extent
that such provision for taxes was deducted in computing
such Consolidated Net Income; PLUS
(2) consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or
accrued and whether or not capitalized (including,
without limitation, amortization of debt issuance costs
and original issue discount, non-cash interest payments,
the interest component of any deferred payment
obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed
interest with respect to Attributable Debt, commissions,
discounts and other fees and charges incurred in respect
of letter of credit or bankers' acceptance financings,
and net of the effect of all payments made or received
pursuant to Hedging Obligations), to the extent that any
such expense was deducted in computing such Consolidated
Net Income; PLUS
(3) depreciation, amortization (including amortization of
goodwill and other intangibles but excluding amortization
of prepaid cash expenses that were paid in a prior
period) and other non-cash expenses (excluding any such
non-cash expense to the extent that it represents an
accrual of or reserve for cash expenses in any future
period or amortization of a prepaid cash expense that was
paid in a prior period) of such Person and its Restricted
Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses
were deducted in computing such Consolidated Net Income;
MINUS
(4) non-cash items increasing such Consolidated Net Income
for such period, other than (a) the accrual of revenue
consistent with past practice and (b) reversals of prior
accruals or reserves for cash expenses previously
excluded from Consolidated Cash Flow of the Issuer by
reason of clause (3) of this definition, in each case, on
a consolidated basis and determined in accordance with
GAAP; and AS ADJUSTED
(5) in the case of the Issuer or any Restricted Subsidiary,
to eliminate the revenues and costs of revenues directly
attributable to the Discontinued Contracts to the extent
included in computing such Consolidated Net
6
Income; PROVIDED, HOWEVER, that to the extent the
Discontinued Contract with Lockheed ▇▇▇▇▇▇ is extended
beyond December 31, 2003, the revenues and costs of
revenues for the extension period will not be excluded in
computing Consolidated Net Income.
Notwithstanding the preceding, the provision for taxes based on
the income or profits of, and the depreciation and amortization and other
non-cash expenses of, a Restricted Subsidiary of the Issuer shall be added to
Consolidated Net Income to compute Consolidated Cash Flow of the Issuer only to
the extent that a corresponding amount would be permitted at the date of
determination to be dividended or otherwise distributed in the nature of a
dividend to the Issuer by such Restricted Subsidiary without prior governmental
approval (that has not been obtained), and without direct or indirect
restriction pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Restricted Subsidiary or its stockholders.
"CONSOLIDATED NET INCOME" means, with respect to any specified
Person for any period, the aggregate of the Net Income of such Person and its
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; PROVIDED that:
(1) the Net Income of any Person that is not a Restricted
Subsidiary or that is accounted for by the equity method
of accounting shall be included only to the extent of the
amount of dividends or distributions paid in cash to the
specified Person or a Wholly Owned Restricted Subsidiary
thereof;
(2) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of
dividends or similar distributions by that Restricted
Subsidiary of that Net Income is not at the date of
determination permitted without any prior governmental
approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or
any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to
that Restricted Subsidiary or its stockholders (except to
the extent of the amount of dividends or distributions
that have actually been paid to the Issuer or one or more
Restricted Subsidiaries not subject to any such
restrictions);
(3) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of
such acquisition shall be excluded;
(4) the cumulative effect of a change in accounting
principles shall be excluded;
(5) the net loss of any Person, other than a Restricted
Subsidiary of the Issuer, will be excluded;
(6) non-cash charges relating to employee benefit or other
management compensation plans of the Issuer or any of its
Restricted Subsidiaries or any non-cash compensation
charge arising from any grant of stock, stock options or
other equity-based awards of the Issuer or any of its
Restricted
7
Subsidiaries (excluding in each case any non-cash charge
to the extent that it represents an accrual of or reserve
for cash expenses in any future period or amortization of
a prepaid cash expense incurred in a prior period) in
each case, to the extent that such non-cash charges are
deducted in computing such Consolidated Net Income will
be excluded; and
(7) items classified as extraordinary (as determined in
accordance with GAAP) or unusual or nonrecurring losses
or charges (including, without limitation, severance,
relocation and other restructuring costs), and related
tax effects, will be excluded.
"CONTINUING DIRECTORS" means, as of any date of determination,
any member of the Board of Directors of DigitalNet Holdings or the Issuer who:
(1) was a member of such Board of Directors on the date of
this Indenture; or
(2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the
Continuing Directors who were members of such Board at
the time of such nomination or election.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address
of the Trustee specified in Section 12.02 hereof or such other address as to
which the Trustee may give notice to the Issuer.
"CREDIT AGREEMENT" means that certain Credit Agreement, to be
dated as of the date of this Indenture, by and among DigitalNet Holdings, the
Issuer, Bank of America, N.A., as Administrative Agent, Swing Line Lender and
L/C Issuer, and the other Lenders and other agents and other arrangers, if any,
named therein providing for up to $50.0 million of revolving credit borrowings,
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, and in each case as amended,
modified, renewed, refunded, replaced or refinanced from time to time.
"CREDIT FACILITIES" means one or more debt facilities (including,
without limitation, the Credit Agreement) or commercial paper facilities, in
each case, with banks or other institutional lenders providing for revolving
credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from
such lenders against such receivables) or letters of credit, in each case, as
amended, restated, modified, renewed, refunded, replaced or refinanced in whole
or in part from time to time.
"CURRENCY EXCHANGE AGREEMENT" means, in respect of a Person, any
foreign exchange contract, currency swap agreement, currency option or other
similar agreement or arrangement designed to fix or hedge currency exchange
risk.
"CUSTODIAN" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
8
"DEFAULT" means any event that is, or with the passage of time or
the giving of notice or both would be, an Event of Default.
"DEFINITIVE NOTE" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.07 hereof,
substantially in the form of Exhibit A hereto, and such Note shall not bear the
Global Note Legend and shall not have the "Schedule of Exchanges of Interests in
the Global Note" attached thereto.
"DEPOSITARY" means, with respect to the Notes issuable or issued
in whole or in part in global form, the Person specified in Section 2.04 hereof
as the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"DGS" means DigitalNet Government Solutions, LLC, a Delaware
limited liability company and a wholly owned subsidiary of the Issuer.
"DIGITALNET HOLDINGS" means DigitalNet Holdings, Inc., a Delaware
corporation and the direct parent corporation of the Issuer.
"DISCONTINUED CONTRACTS" means the Issuer's contract dated as of
September 17, 1997 with the U.S. Immigration and Naturalization Service,
Facilities Operation Support, and the Issuer's contract dated as of December 31,
1998 with Lockheed ▇▇▇▇▇▇ in support of the National Aeronautics and Space
Administration, Consolidated Space Operations Contract.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible, or for which it
is exchangeable, in each case, at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is six months after
the date on which the Notes mature. Notwithstanding the preceding sentence, any
Capital Stock that would constitute Disqualified Stock solely because the
holders thereof have the right to require the Issuer to repurchase such Capital
Stock upon the occurrence of a change of control or an asset sale shall not
constitute Disqualified Stock if the terms of such Capital Stock provide that
the Issuer may not repurchase or redeem any such Capital Stock pursuant to such
provisions unless such repurchase or redemption complies with Section 4.07.
"DOMESTIC SUBSIDIARY" means any Restricted Subsidiary that was
formed under the laws of the United States or any state thereof or the District
of Columbia that is not a Foreign Subsidiary or that guarantees or otherwise
provides direct credit support for any Indebtedness of the Issuer.
"EQUITY INTERESTS" means Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt security that
is convertible into, or exchangeable for, Capital Stock).
"EQUITY OFFERING" means (1) a registered public offering of
common stock (other than Disqualified Stock) of DigitalNet Holdings or the
Issuer or (2) a private placement of
9
common stock (other than Disqualified Stock) of DigitalNet Holdings or the
Issuer yielding gross proceeds of at least $25.0 million.
"EQUITY PURCHASE AGREEMENT" means that certain Purchase
Agreement, made as of September 7, 2001, by and among DigitalNet Holdings, GTCR
Fund VII, L.P., GTCR Co-Invest, L.P., the J. Sunny Bajaj Trust, the ▇▇▇▇▇▇ ▇▇▇▇▇
Trust, the Bajaj Family Limited Partnership and the ▇▇▇▇▇▇▇▇▇▇ Family, LLC.
"EUROCLEAR" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System, or any successor securities clearing agency.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXCHANGE NOTES" means the Notes issued in the Exchange Offer in
accordance with Section 2.07(f) hereof.
"EXCHANGE OFFER" has the meaning set forth in the Registration
Rights Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set forth
in the Registration Rights Agreement.
"EXISTING INDEBTEDNESS" means the aggregate principal amount of
Indebtedness of the Issuer and its Subsidiaries (other than Indebtedness under
the Credit Agreement, the Credit Agreement dated as of November 26, 2002 among
the Issuer, DigitalNet Holdings, Bank of America, N.A., as Administrative Agent,
Swingline Lender and L/C Issuer, Madison Capital Funding LLC, as Syndication
Agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business Financial
Services Inc., as Documentation Agent and the other lenders party thereto or the
Bridge Loan Agreement dated as of November 26, 2002 by and among the Issuer,
DigitalNet Holdings, Banc of America Mezzanine Capital LLC and the other lenders
party thereto) in existence on the date of this Indenture, until such amounts
are repaid.
"FAIR MARKET VALUE" means the price that would be paid in an
arm's-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to buy,
as determined in good faith by the Board of Directors, whose determination shall
be conclusive if evidenced by a Board Resolution.
"FIXED CHARGES" means, with respect to any specified Person for
any period, the sum, without duplication, of:
(1) the consolidated interest expense of such Person and its
Subsidiaries for such period, whether paid or accrued,
including, without limitation, original issue discount,
non-cash interest payments, the interest component of any
deferred payment obligations, the interest component of
all payments associated with Capital Lease Obligations,
imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers'
acceptance financings, and net of the effect of
10
all payments made or received pursuant to Hedging
Obligations, and excluding amortization or write-off of
debt issuance costs; PLUS
(2) the consolidated interest of such Person and its
Restricted Subsidiaries that was capitalized during such
period, excluding amortization or write-off of debt
issuance costs; PLUS
(3) any interest expense on Indebtedness of another Person
that is Guaranteed by such Person or one of its
Restricted Subsidiaries or secured by a Lien on assets of
such Person or one of its Restricted Subsidiaries,
whether or not such Guarantee or Lien is called upon;
PLUS
(4) the product of (a) all dividends, whether paid or accrued
and whether or not in cash, on any series of Disqualified
Stock or preferred stock of such Person or any of its
Restricted Subsidiaries, other than dividends on Equity
Interests payable solely in Equity Interests of the
Issuer (other than Disqualified Stock) or to the Issuer
or a Restricted Subsidiary of the Issuer, times (b) a
fraction, the numerator of which is one and the
denominator of which is one minus the then current
combined federal, state and local statutory tax rate of
such Person, expressed as a decimal, in each case, on a
consolidated basis and in accordance with GAAP.
"FIXED CHARGE COVERAGE RATIO" means with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such Person
for such period to the Fixed Charges of such Person for such period. In the
event that the specified Person or any of its Subsidiaries incurs, assumes,
Guarantees, repays, repurchases or redeems any Indebtedness or issues,
repurchases or redeems preferred stock subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated and on or
prior to the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the "CALCULATION DATE"), then the Fixed Charge
Coverage Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, Guarantee, repayment, repurchase or redemption of Indebtedness, or
such issuance, repurchase or redemption of preferred stock, and the use of the
proceeds therefrom as if the same had occurred at the beginning of the
applicable four-quarter reference period. If any Indebtedness is incurred under
a revolving credit facility and is being given pro forma effect, the interest on
such Indebtedness shall be calculated based on the average daily balance of such
Indebtedness for the four fiscal quarters subject to the pro forma calculation
to the extent that such Indebtedness was incurred solely for working capital
purposes.
In addition, for purposes of calculating the Fixed Charge
Coverage Ratio:
(1) acquisitions and dispositions that have been made by the
specified Person or any of its Restricted Subsidiaries,
including through mergers or consolidations and including
any related financing transactions, during the
four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date
shall be given pro forma effect as if they had occurred
on the first day of the four-quarter reference period and
Consolidated Cash Flow for such reference period shall be
calculated on a
11
pro forma basis in accordance with Regulation S-X under
the Securities Act, but except that Pro Forma Cost
Savings may also be taken into account and without giving
effect to clause (3) of the proviso set forth in the
definition of Consolidated Net Income;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and
operations or businesses disposed of prior to the
Calculation Date, shall be excluded; and
(3) the Fixed Charges attributable to discontinued
operations, as determined in accordance with GAAP, and
operations or businesses disposed of prior to the
Calculation Date, shall be excluded, but only to the
extent that the obligations giving rise to such Fixed
Charges will not be obligations of the specified Person
or any of its Subsidiaries following the Calculation
Date.
"FOREIGN SUBSIDIARY" means any Restricted Subsidiary that (x) is
not organized under the laws of the United States of America or any state
thereof or the District of Columbia or (y) is organized under the laws of the
United States of America or any state thereof or the District of Columbia but
has no material asset other than Capital Stock of one or more Persons described
in clause (x) above.
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on the date of this Indenture.
"GLOBAL NOTES" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, substantially in the
form of Exhibit A hereto, issued in accordance with Section 2.01, 2.07(b),
2.07(d) or 2.07(f) of this Indenture.
"GLOBAL NOTE LEGEND" means the legend set forth in Section
2.07(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"GOVERNMENT SECURITIES" means securities issued or directly and
fully guaranteed or insured by the United States government or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) and which are not callable or redeemable
at the issuer's option.
"GUARANTEE" means a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course of business, direct
or indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
"GUARANTORS" means:
(1) DigitalNet Holdings;
12
(2) each direct or indirect Domestic Subsidiary of the
Issuer; and
(3) any other Subsidiary that executes a Note Guarantee in
accordance with the provisions of this Indenture;
and their respective successors and assigns.
"GTCR" means GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C. and its controlled
affiliates.
"HEDGING OBLIGATIONS" means, with respect to any specified
Person, the obligations of such Person under Interest Rate Agreements, Commodity
Price Agreements and Currency Exchange Agreements.
"HOLDER" means a Person in whose name a Note is registered.
"INDEBTEDNESS" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent, in respect of:
(1) borrowed money;
(2) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement
agreements in respect thereof);
(3) banker's acceptances;
(4) representing Capital Lease Obligations;
(5) the balance deferred and unpaid of the purchase price of
any property, except any such balance that constitutes an
accrued expense or trade payable;
(6) representing any Hedging Obligations;
if and to the extent any of the preceding items (other than
letters of credit and Hedging Obligations) would appear as a
liability upon a balance sheet of the specified Person prepared
in accordance with GAAP. In addition, the term "Indebtedness"
includes all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness
is assumed by the specified Person) and, to the extent not
otherwise included, the Guarantee by the specified Person of any
Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall
be:
(1) the accreted value thereof, in the case of any
Indebtedness issued with original issue discount; and
(2) the principal amount thereof, together with any interest
thereon that is more than 30 days past due, in the case of any other
Indebtedness.
13
"INDENTURE" means this Indenture, as amended or supplemented from
time to time.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"INITIAL NOTES" means the Notes issued on the date hereof that
will be offered and sold by the Issuer pursuant to the Purchase Agreement.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is
an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, that is not also a QIB.
"INTEREST RATE AGREEMENT" means, for any Person, any interest
rate swap agreement, interest rate cap agreement, interest rate collar agreement
or other similar agreement designed to fix or hedge interest rates.
"INVESTMENTS" means, with respect to any Person, all direct or
indirect investments by such Person in other Persons (including Affiliates) in
the forms of loans (including Guarantees or other obligations), advances or
capital contributions (excluding commission, travel and similar advances to
officers and employees made in the ordinary course of business), purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. The acquisition
by the Issuer or any Restricted Subsidiary of the Issuer of a Person that holds
an Investment in a third Person shall be deemed to be an Investment by the
Issuer or such Restricted Subsidiary in such third Person in an amount equal to
the fair market value of the Investment held by the acquired Person in such
third Person in an amount determined as provided in Section 4.07.
"ISSUER" means DigitalNet, Inc. until a successor replaces it
pursuant to Section 5.01 hereof and thereafter means the successor.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which
banking institutions in The City of
New York or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue on such payment for the intervening period.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be
prepared by the Issuer and sent to all Holders of the Notes for use by such
Holders in connection with the Exchange Offer.
"LIEN" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law, including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction.
14
"LIQUIDATED DAMAGES" has the meaning provided in the Registration
Rights Agreement.
"NET INCOME" means, with respect to any specified Person, the net
income (loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however:
(1) any gain (or loss), together with any related provision
for taxes on such gain (or loss), realized in connection
with: (a) any Asset Sale (without giving effect to clause
(1) of the second paragraph of such definition); or (b)
the disposition of any securities by such Person or any
of its Restricted Subsidiaries or the extinguishment of
any Indebtedness of such Person or any of its Restricted
Subsidiaries; and
(2) any extraordinary gain (or loss), together with any
related provision for taxes on such extraordinary gain
(or loss).
"NET PROCEEDS" means the aggregate cash proceeds received by the
Issuer or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale, including, without limitation,
legal, accounting and investment banking fees, and sales commissions, and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof, in each case, after taking into account any available tax
credits or deductions and any tax sharing arrangements, and amounts required to
be applied to the repayment of Indebtedness, secured by a Lien on the asset or
assets that were the subject of such Asset Sale or otherwise required by its
terms to be repaid as a result of such Asset Sale and any reserve for adjustment
in respect of the sale price of such asset or assets established in accordance
with GAAP or escrows or indemnities established in connection with the
transaction.
"NON-RECOURSE DEBT" means Indebtedness:
(1) as to which neither the Issuer nor any of its Restricted
Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that
would constitute Indebtedness), (b) is directly or
indirectly liable as a guarantor or otherwise, or (c)
constitutes the lender; and
(2) no default with respect to which (including any rights
that the holders thereof may have to take enforcement
action against an Unrestricted Subsidiary) would permit
upon notice, lapse of time or both any holder of any
other Indebtedness (other than the Notes) of the Issuer
or any of its Restricted Subsidiaries to declare a
default on such other Indebtedness or cause the payment
thereof to be accelerated or payable prior to its Stated
Maturity.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
15
"NOTE GUARANTEE" means a Guarantee of the Notes pursuant to this
Indenture.
"NOTES" means the 9% Senior Notes due 2010 of the Issuer issued
on the date hereof and any Additional Notes, including any Exchange Notes. The
Notes and the Additional Notes, if any, shall be treated as a single class for
all purposes under this Indenture.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFERING MEMORANDUM" means the offering memorandum of the Issuer
for the offering of the Notes, dated June 27, 2003.
"OFFICER" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of
the Issuer by at least two Officers of the Issuer, one of whom must be the
principal executive officer, the principal financial officer, the treasurer or
the principal accounting officer of the Issuer, that meets the requirements of
Section 12.05 hereof.
"OPINION OF COUNSEL" means a written opinion (subject to
customary assumptions and exceptions) from legal counsel who is reasonably
acceptable to the Trustee that meets the requirements of Section 12.05 hereof.
The counsel may be an employee of or counsel to the Issuer or a Guarantor.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and with respect to DTC, shall include Euroclear and
Clearstream).
"PERMITTED BUSINESS" means any business conducted or proposed to
be conducted (as described in the Offering Memorandum) by the Issuer and its
Restricted Subsidiaries on the date of this Indenture and other businesses
reasonably related or ancillary thereto.
"PERMITTED INVESTMENTS" means:
(1) any Investment in the Issuer or in a Restricted
Subsidiary of the Issuer that is a Subsidiary Guarantor;
(2) any Investment in cash or Cash Equivalents;
(3) any Investment by the Issuer or any Restricted Subsidiary
of the Issuer in a Person, if as a result of such
Investment: (a) such Person becomes a Restricted
Subsidiary of the Issuer and a Subsidiary Guarantor; or
(b) such Person is merged, consolidated or amalgamated
with or into, or transfers or
16
conveys substantially all of its assets to, or is
liquidated into, the Issuer or a Restricted Subsidiary of
the Issuer that is a Subsidiary Guarantor;
(4) any Investment made as a result of the receipt of
non-cash consideration from an asset sale that was made
pursuant to and in compliance with Section 4.10;
(5) any acquisition of assets solely in exchange, directly or
indirectly, for the issuance of Equity interests (other
than Disqualified Stock) of the Issuer or any direct
parent of the Issuer, including, without limitation,
DigitalNet Holdings;
(6) Hedging Obligations not entered into for the purpose of
speculation;
(7) loans and advances to officers, directors or employees of
the Issuer or its Restricted Subsidiaries made in the
ordinary course of business in an amount that, when taken
together with all other loans and advances made pursuant
to this clause (7) and then outstanding, does not exceed
$2.0 million;
(8) Investments by the Issuer or its Restricted Subsidiaries
received in connection with the bankruptcy or
reorganization of, or good faith settlement of accounts
or debtor disputes with, customers and suppliers;
(9) Investments constituting (i) accounts receivable, (ii)
trade debt granted or (iii) deposits made in connection
with the purchase price of goods or services, in each
case in the ordinary course of business;
(10) Investments by the Issuer and its Restricted Subsidiaries
constituting endorsements for collection or deposit in
the ordinary course of business;
(11) Guarantees by the Issuer or any Subsidiary Guarantor of
Indebtedness otherwise permitted to be incurred by
Restricted Subsidiaries of the Issuer under Section 4.09;
(12) Investments in Foreign Subsidiaries in an aggregate
amount at any time outstanding not to exceed $5.0 million
pursuant to this clause (12); and
(13) other Investments in any Person having an aggregate fair
market value (measured on the date each such Investment
was made and without giving effect to subsequent changes
in value), when taken together with all other Investments
made pursuant to this clause (13) since the date of this
Indenture, after giving effect to any such Investments
that are returned to the Issuer or any Restricted
Subsidiary in an amount equal to the lesser of (x) the
cash returned and (y) the original amount of such
Investment, not to exceed $10.0 million.
17
"PERMITTED LIENS" means:
(1) Liens to secure Indebtedness permitted by Section
4.09(b)(i);
(2) Liens in favor of the Issuer or any Restricted
Subsidiary;
(3) Liens on property of a Person existing at the time such
Person is merged with or into or consolidated with the
Issuer or any Restricted Subsidiary of the Issuer;
PROVIDED that such Liens were in existence prior to the
contemplation of such merger or consolidation and do not
extend to any assets other than those of the Person
merged into or consolidated with the Issuer or the
Restricted Subsidiary;
(4) Liens on property existing at the time of acquisition
thereof by the Issuer or any Restricted Subsidiary of the
Issuer, PROVIDED that such Liens were in existence prior
to the contemplation of such acquisition and do not
extend to any property other than the property so
acquired by the Issuer or the Restricted Subsidiary;
(5) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by Section 4.09(b)(iv) covering
only the assets acquired, constructed or improved with
such Indebtedness, PROVIDED that with respect to purchase
money indebtedness the principal amount of the purchase
money indebtedness secured thereby does not exceed 100%
of the cost of such asset;
(6) Liens existing on the date of this Indenture and any
renewals or extensions thereof, PROVIDED, that such
renewals or extensions: (a) are no less favorable in any
material respect to the Holders of Notes and are not more
favorable in any material respect to the lienholders with
respect to such Liens being renewed or extended; and (b)
do not extend to any property or assets other than the
property or assets that are the subject of the Lien being
renewed or extended;
(7) Liens for taxes, assessments or governmental charges or
levies on the property of the Issuer or any Restricted
Subsidiary if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or
are being contested in good faith and by appropriate
proceedings promptly instituted and diligently concluded,
provided that any reserve or other appropriate provision
that shall be required in conformity with GAAP shall have
been made therefor;
(8) Liens imposed by law, such as carriers', warehousemen's
and mechanics' Liens and other similar Liens, on the
property of the Issuer or any Restricted Subsidiary
arising in the ordinary course of business and securing
payment of obligations that are not more than 60 days
past due or are being contested in good faith and by
appropriate proceedings;
18
(9) Liens on the property of the Issuer or any Restricted
Subsidiary incurred in the ordinary course of business to
secure performance of obligations with respect to
statutory or regulatory requirements, performance or
return-of-money bonds, surety bonds, contractual
arrangements with landlords or suppliers or other
obligations of a like nature and incurred in a manner
consistent with prudent practice, in each case, which are
not incurred in connection with the borrowing of money,
the obtaining of advances or credit or the payment of the
deferred purchase price of property and which do not in
the aggregate impair in any material respect the use of
property in the operation of the business of the Issuer
and the Restricted Subsidiaries taken as a whole;
(10) pledges or deposits by the Issuer or any Restricted
Subsidiary under worker's compensation laws, unemployment
insurance laws or similar legislation, or good faith
deposits in connection with bids, tenders, contracts
(other than for the payment of Indebtedness) or leases to
which the Issuer or any Restricted Subsidiary is party,
or deposits to secure public or statutory obligations of
the Issuer or any Restricted Subsidiary, or deposits for
the payment of rent, in each case incurred in the
ordinary course of business;
(11) easements, building restrictions or rights of others for
licenses, rights of way, sewers, electric lines,
telegraph and telephone lines and such other encumbrances
or charges against real property as are of a nature
generally existing with respect to properties of a
similar character;
(12) any interest or title of a lessor, sublicensor or
licensor under any lease or license entered into in the
ordinary course of business and covering only the assets
so leased or licensed;
(13) Liens securing judgments for the payment of money not
constituting an Event of Default or securing appeal or
other surety bonds related to such judgments;
(14) Liens in favor of governmental bodies to secure, advance
or progress payments pursuant to any contract or statute;
(15) rights of set-off or banker's Liens and Liens securing
Hedging Obligations that are permitted by this Indenture;
(16) Liens on property of a Foreign Subsidiary securing
Indebtedness permitted by Section 4.09; and
(17) Liens arising from precautionary UCC financing statements
regarding operating leases or consignments, which are not
incurred in connection with the borrowing of money.
19
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of
the Issuer or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Issuer or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); PROVIDED that:
(1) the principal amount (or accreted value, if applicable)
of such Permitted Refinancing Indebtedness does not
exceed the principal amount (or accreted value, if
applicable) of the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded (plus all accrued
interest thereon and the amount of any reasonably
determined premium necessary to accomplish such
refinancing and such reasonable fees and expenses
incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and
has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of,
the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right
of payment to the Notes, such Permitted Refinancing
Indebtedness is subordinated in right of payment to, the
Notes on terms at least as favorable to the Holders of
Notes as those contained in the documentation governing
the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and
(4) such Indebtedness is incurred either by the Issuer or by
the Restricted Subsidiary who is the obligor on the
Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
"PRINCIPALS" means GTCR and ▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and, with respect to each such individual, members of his
immediate family, any of their respective spouses, estates, lineal descendants,
heirs, executors, personal representatives, administrators, trusts for any of
their benefit and charitable foundations to which shares of the Issuer's or
DigitalNet Holdings' Capital Stock Beneficially Owned by any of the foregoing
have been transferred.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
2.07(g)(i) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"PROFESSIONAL SERVICES AGREEMENT" means the Professional Services
Agreement dated as of September 7, 2001 between GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C. and
the Issuer.
20
"PRO FORMA COST SAVINGS" means, with respect to any period, the
reduction in costs and related adjustments associated with the acquisition of a
business that are attributable to that period and that (i) are calculated on a
basis consistent with Regulation S-X under the Securities Act as in effect and
applied on the date of this Indenture or (ii) have actually been implemented by
the business that was the subject of the acquisition within six months of the
date of the acquisition and prior to the Calculation Date and that are
supportable and quantifiable by the underlying accounting records of such
business and are set forth in an officers' certificate, as if, in the case of
each of clauses (i) and (ii), such reductions in costs and related adjustments
had been effected as of the beginning of such period.
"PURCHASE AGREEMENT" means the Purchase Agreement, dated as of
June 27, 2003, by and among the Issuer, DigitalNet Holdings, DGS and the initial
purchasers named on Schedule A thereof.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the date hereof, by and among the Issuer and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time.
"REGULATION S" means Regulation S promulgated under the
Securities Act.
"REGULATION S GLOBAL NOTE" means a Regulation S Temporary Global
Note or a Regulation S Permanent Global Note, as appropriate.
"REGULATION S PERMANENT GLOBAL NOTE" means a permanent Global
Note in the form of Exhibit A hereto bearing the Global Note Legend, deposited
with or on behalf of and registered in the name of the Depositary or its nominee
and issued upon expiration of the Restricted Period.
"REGULATION S TEMPORARY GLOBAL NOTE" means a temporary Global
Note in the form of Exhibit A hereto bearing the Global Note Legend, the Private
Placement Legend and the Regulation S Temporary Global Note Legend and deposited
with or on behalf of and registered in the name of the Depositary or its
nominee, issued in a denomination equal to the outstanding principal amount of
the Notes initially sold in reliance on Rule 903 of Regulation S.
"RELATED PARTY" means:
(1) any controlling stockholder, partner, member, majority
(or more) owned Subsidiary, or immediate family member
(in the case of an individual) of any Principal; or
(2) any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons
directly or indirectly beneficially holding a majority
interest of which consist of any one or more Principals
and/or such other Persons referred to in the immediately
preceding clause (1).
21
"RESPONSIBLE OFFICER," when used with respect to the Trustee,
means any officer within the Corporate Trust Administration of the Trustee (or
any successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"RESTRICTED DEFINITIVE NOTE" means a Definitive Note bearing the
Private Placement Legend.
"RESTRICTED GLOBAL NOTE" means a Global Note bearing the Private
Placement Legend.
"RESTRICTED INVESTMENT" means an Investment other than a
Permitted Investment.
"RESTRICTED PERIOD" means the 40-day distribution compliance
period as defined in Regulation S.
"RESTRICTED SUBSIDIARY" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated the Securities Act.
"SALE AND LEASEBACK TRANSACTION" means, with respect to any
Person, any transaction involving any of the assets or properties of such Person
whether now owned or hereafter acquired, whereby such Person sells or transfers
such assets or properties and then or thereafter leases such assets or
properties or any part thereof or any other assets or properties which such
Person intends to use for substantially the same purpose or purposes as the
assets or properties sold or transferred.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR MANAGEMENT AGREEMENTS" means (1) the Senior Management
Agreement, made as of September 7, 2001, by and among DigitalNet Holdings, the
Issuer, and ▇▇▇ ▇. ▇▇▇▇▇, (2) the Senior Management Agreement, made as of
September 7, 2001, by and among DigitalNet Holdings, the Issuer, and ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, (3) the Amended and Restated Senior Management Agreement, made as of
January 23, 2003, among DigitalNet Holdings, the Issuer, DGS, and ▇▇▇▇▇▇ ▇▇▇▇▇,
and (4) the Senior Management Agreement, made as of February 15, 2002, by and
among DigitalNet Holdings, the Issuer, and ▇▇▇▇▇ ▇▇▇▇▇▇▇.
22
"SHELF REGISTRATION STATEMENT" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means any Restricted Subsidiary that
would be a "Significant Subsidiary" of the Issuer within the meaning of Rule
1-02 under Regulation S-X promulgated by the SEC as in effect on the date of
this Indenture.
"STATED MATURITY" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which such
payment of interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness, and shall not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior
to the date originally scheduled for the payment thereof.
"SUBORDINATED OBLIGATION" means any Indebtedness of the Issuer or
any Subsidiary Guarantor (whether outstanding on the date of this Indenture or
thereafter incurred) that is subordinate or junior in right of payment to the
Notes or the applicable Subsidiary Guarantee pursuant to a written agreement to
that effect.
"SUBSIDIARY" means, with respect to any specified Person:
(1) any corporation, limited liability company, association
or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other
Subsidiaries of that Person (or a combination thereof);
and
(2) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a
Subsidiary of such Person or (b) the only general
partners of which are such Person or one or more
Subsidiaries of such Person (or any combination thereof).
"SUBSIDIARY GUARANTOR" means DGS and each other direct or
indirect Subsidiary of the Issuer that executes a Note Guarantee in accordance
with the provisions of this Indenture; and its respective successors and
assigns.
"TIA" means the Trust Indenture Act of 1939, as in effect on the
date on which this Indenture is qualified under the TIA.
"TRUSTEE" means ▇▇▇▇▇ Fargo Bank Minnesota, National Association,
a national banking association, until a successor replaces it in accordance with
the applicable provisions of this Indenture and thereafter means the successor
serving hereunder.
"UNRESTRICTED DEFINITIVE NOTE" means one or more Definitive Notes
that do not bear and are not required to bear the Private Placement Legend.
"UNRESTRICTED GLOBAL NOTE" means a permanent Global Note
substantially in the form of Exhibit A attached hereto that bears the Global
Note Legend and that has the "Schedule
23
of Exchanges of Interests in the Global Note" attached thereto, and that is
deposited with or on behalf of and registered in the name of the Depositary,
representing a series of Notes, and that does not bear the Private Placement
Legend.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of the Issuer that
is designated by the Board of Directors as an Unrestricted Subsidiary pursuant
to a Board Resolution, but only to the extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or
understanding with the Issuer or any Restricted
Subsidiary of the Issuer unless the terms of any such
agreement, contract, arrangement or understanding are no
less favorable, taken as a whole in any material respect,
to the Issuer or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are
not Affiliates of the Issuer;
(3) is a Person with respect to which neither the Issuer nor
any of its Restricted Subsidiaries has any direct or
indirect obligation (a) to subscribe for additional
Equity Interests or (b) to maintain or preserve such
Person's financial condition or to cause such Person to
achieve any specified levels of operating results; and
(4) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the
Issuer or any of its Restricted Subsidiaries.
Any designation of a Restricted Subsidiary of the Issuer as an
Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the
Trustee a certified copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the preceding conditions and was permitted by Section 4.07. If, at
any time, any Unrestricted Subsidiary would fail to meet the preceding
requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of
such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Issuer as of such date and, if such Indebtedness is not permitted to be incurred
as of such date under Section 4.09, the Issuer shall be in default of such
covenant.
"UNSUBORDINATED INDEBTEDNESS" of a Person means any Indebtedness
of such Person, unless such Indebtedness is contractually subordinate or junior
in right of payment of principal, premium or interest to any other Indebtedness
of such Person.
"U.S. DOLLAR EQUIVALENT" means, with respect to any monetary
amount in a currency other than U.S. dollars, at any time of determination
thereof, the amount of U.S. dollars obtained by translating such other currency
involved in such computation into U.S. dollars at the spot rate for the purchase
of U.S. dollars with the applicable other currency as published in the Wall
Street Journal on the date that is two Business Days prior to such
determination.
24
"U.S. PERSON" means a U.S. person as defined in Rule 902(o) under
the Securities Act.
"VOTING STOCK" of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund,
serial maturity or other required payments of principal,
including payment at final maturity, in respect thereof,
by (b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the
making of such payment; by
(2) the then outstanding principal amount of such
Indebtedness.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" of any specified Person
means a Restricted Subsidiary of such Person all of the outstanding Capital
Stock or other ownership interests of which (other than directors' qualifying
shares) shall at the time be owned by such Person and/or by one or more Wholly
Owned Restricted Subsidiaries of such Person.
Section 1.02. OTHER DEFINITIONS.
DEFINED
IN
TERM SECTION
---- -------
"AFFILIATE TRANSACTION".................................................... 4.11
"ASSET SALE OFFER"......................................................... 4.10
"AUTHENTICATION ORDER"..................................................... 2.02
"CHANGE OF CONTROL OFFER".................................................. 4.14
"CHANGE OF CONTROL PAYMENT"................................................ 4.14
"CHANGE OF CONTROL PAYMENT DATE"........................................... 4.14
"COVENANT DEFEASANCE"...................................................... 8.03
"DTC"...................................................................... 2.01
"EVENT OF DEFAULT"......................................................... 6.01
"EXCESS PROCEEDS".......................................................... 4.10
"LEGAL DEFEASANCE"......................................................... 8.02
"OFFER AMOUNT"............................................................. 3.08
"OFFER PERIOD"............................................................. 3.08
"OFFSHORE TRANSACTION"..................................................... 2.07
"PAYING AGENT"............................................................. 2.04
"PAYMENT DEFAULT".......................................................... 6.01
"PERMITTED DEBT"........................................................... 4.09
"PURCHASE DATE"............................................................ 3.08
"REGISTRAR"................................................................ 2.04
25
DEFINED
IN
TERM SECTION
---- -------
"RELATED PROCEEDINGS"...................................................... 12.09
"REPURCHASE OFFER"......................................................... 3.08
"RESTRICTED PAYMENTS"...................................................... 4.07
"SPECIFIED COURTS"......................................................... 12.09
Section 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
and
"OBLIGOR" on the Notes means the Issuer and any successor obligor
upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
Section 1.04. RULES OF CONSTRUCTION.
(a) Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) all references to the Notes includes the Additional
Notes;
(iv) words in the singular include the plural, and in the
plural include the singular; and
(v) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement of successor
sections or rules adopted by the SEC from time to time.
26
ARTICLE TWO
THE NOTES
Section 2.01. FORM AND DATING.
(a) GENERAL. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The Notes
may have notations, legends or endorsements required by law, stock exchange rule
or usage. Each Note shall be dated the date of its authentication. The Notes
shall be issued in registered, global form without interest coupons and only
shall be in minimum denominations of $1,000 and integral multiples of $1,000 in
excess thereof.
The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made, a part of this Indenture and the Issuer, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
(b) GLOBAL NOTES. Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (and shall include the
Global Note Legend thereon and the "Schedule of Exchanges of Interests in the
Global Note" attached thereto). Notes issued in definitive form shall be
substantially in the form of Exhibit A attached hereto (but without the Global
Note Legend thereon and without the "Schedule of Exchanges of Interests in the
Global Note" attached thereto). Each Global Note shall represent such of the
outstanding Notes as shall be specified therein and each shall provide that it
shall represent the aggregate principal amount of outstanding Notes from time to
time endorsed thereon and that the aggregate principal amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee in accordance with instructions given by the Holder thereof as required
by Section 2.07 hereof. The Global Notes shall be deposited on behalf of the
purchasers of the Notes represented thereby with the Trustee, as custodian for
the Depositary, and registered in the name of the Depositary or the nominee of
the Depositary for the accounts of designated agents holding on behalf of
Euroclear or Clearstream, duly executed by the Issuer and authenticated by the
Trustee as hereinafter provided.
The Initial Notes will be resold initially only to (i) QIBs in
reliance on Rule 144A and (ii) Persons other than U.S. Persons in reliance on
Regulation S. Initial Notes may thereafter be transferred subject to the
restrictions on transfer set forth herein.
(c) REGULATION S GLOBAL NOTES. Notes offered and sold in
reliance on Regulation S shall be issued initially in the form of the Regulation
S Temporary Global Note. Following the termination of the Restricted Period,
beneficial interests in the Regulation S Temporary Global Note shall be
exchanged for beneficial interests in the Regulation S Permanent Global Note,
pursuant to the Applicable Procedures and then only upon a written certificate
from the Depositary, together with copies of certificates from Euroclear and
Clearstream certifying that they have received certification of non-United
States beneficial
27
ownership of 100% of the aggregate principal amount of the Regulation S
Temporary Global Note to be exchanged for the Regulation S Permanent Global
Note. Owners of beneficial interests in the Regulation S Temporary Global Note
may also take delivery in the form of Definitive Notes or beneficial interests
in the 144A Global Note, upon (i) certification in form reasonable satisfactory
to the Trustee that such interests are being acquired pursuant to an exemption
from Registration under the Securities Act and (ii) after the expiration of the
Restricted Period.
Simultaneously with the authentication of Regulation S Permanent
Global Notes, the Trustee shall cancel the Regulation S Temporary Global Note.
The aggregate principal amount of the Regulation S Global Notes may from time to
time be increased or decreased by adjustments made on the records of the Trustee
and the Depositary or its nominee, as the case may be, in connection with
transfers of interest as hereinafter provided.
(d) EUROCLEAR AND CLEARSTREAM PROCEDURES APPLICABLE. The
provisions of the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of Euroclear" and the "General Terms and Conditions of
Clearstream Bank" and "Customer Handbook" of Clearstream shall be applicable to
transfers of beneficial interests in the Regulation S Global Notes that are held
by Participants through Euroclear or Clearstream.
Section 2.02. EXECUTION AND AUTHENTICATION.
Two Officers of the Issuer shall sign the Notes for the Issuer by
manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. Such signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is unlimited. The Issuer may,
subject to compliance with Section 4.09 of this Indenture and applicable law,
issue Additional Notes under this Indenture, including Exchange Notes. The Notes
issued on the Closing Date and any Additional Notes subsequently issued shall be
treated as a single class for all purposes under this Indenture.
The Trustee shall, upon a written order of the Issuer signed by
two Officers of the Issuer (an "AUTHENTICATION ORDER"), authenticate Notes for
original issue on the date hereof of $125.0 million. At any time and from time
to time after the execution of this Indenture, the Trustee shall, upon receipt
of an Authentication Order, authenticate Notes for original issue in aggregate
principal amount specified in such Authentication Order. The Authentication
Order shall specify the amount of Notes to be authenticated and the date on
which the Notes are to be authenticated.
The Trustee may appoint an authenticating agent acceptable to the
Issuer to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may
28
do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as an Agent to deal with Holders or an Affiliate of the Issuer.
Section 2.03. METHODS OF RECEIVING PAYMENTS ON THE NOTES.
If a Holder of at least $1,000,000 in principal amount of
Definitive Notes has given wire transfer instructions to the Trustee or the
Paying Agent by written notice designating an account not less than 30 days
prior to the relevant due date for payment (or such lesser time as the Trustee
may accept in its sole discretion), the Issuer shall pay all principal, interest
and premium and Liquidated Damages, if any, on that Holder's Notes in accordance
with those instructions. All other payments on Notes shall be made at the office
or agency of the Paying Agent and Registrar within the City and State of
New
York unless the Issuer elects to make interest payments by check mailed to the
Holders at their addresses set forth in the register of Holders.
Section 2.04. REGISTRAR AND PAYING AGENT.
(a) The Issuer shall maintain an office or agency where Notes
may be presented for registration of transfer or for exchange ("REGISTRAR") and
an office or agency where Notes may be presented for payment ("PAYING AGENT").
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Issuer may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional paying agent. The Issuer may change
any Paying Agent or Registrar without prior notice to any Holder. The Issuer
shall notify the Trustee in writing of the name and address of any Agent not a
party to this Indenture. If the Issuer fails to appoint or maintain another
entity as Registrar or Paying Agent, the Trustee shall act as such. The Issuer
or any of its Subsidiaries may act as Paying Agent or Registrar.
(b) The Issuer initially appoints The Depository Trust
Company ("DTC") to act as Depositary with respect to the Global Notes.
(c) The Issuer initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Custodian with respect to the Global
Notes.
Section 2.05. PAYING AGENT TO HOLD MONEY IN TRUST.
The Issuer shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium or Liquidated Damages, if any, or interest on the
Notes, and shall notify the Trustee of any default by the Issuer in making any
such payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Issuer at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Issuer or one of its
Subsidiaries) shall have no further liability for the money. If the Issuer or
one of its Subsidiaries acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent.
29
Upon any bankruptcy or reorganization proceedings relating to the Issuer, the
Trustee shall serve as Paying Agent for the Notes.
Section 2.06. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Issuer shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Issuer shall otherwise comply with TIA Section 312(a).
Section 2.07. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes
shall be exchanged by the Issuer for Definitive Notes if:
(i) the Issuer delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered
under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Issuer within 120 days after
the date of such notice from the Depositary;
(ii) the Issuer in its sole discretion determines that
the Global Notes (in whole but not in part) should be exchanged
for Definitive Notes and delivers a written notice to such effect
to the Trustee; or
(iii) there shall have occurred and be continuing a
Default or Event of Default with respect to the Notes;
PROVIDED that in no event shall the Regulation S Temporary Global Note be
exchanged by the Issuer for Definitive Notes prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Registrar of any certificates
required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act.
Upon the occurrence of any of the preceding events in (i), (ii)
or (iii) above, Definitive Notes shall be issued in such names as the Depositary
shall instruct the Trustee. Any Definitive Note issued in exchange for a
Restricted Global Note pursuant to this Section 2.07(a) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer contained
therein. Global Notes also may be exchanged or replaced, in whole or in part, as
provided in Sections 2.08 and 2.11 hereof. Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.07 or Section 2.08 or 2.11 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note. A
Global Note may not be exchanged for another Note other than as provided in
30
this Section 2.07(a), however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.07(b), (d) or (f) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE
GLOBAL NOTES. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL NOTE.
Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend;
PROVIDED, HOWEVER, that prior to the Restricted Period, transfers of
beneficial interests in the Regulation S Temporary Global Note may not
be made to a U.S. Person or for the account or benefit of a U.S.
Person (other than the Initial Purchasers) unless certification is
provided in form reasonable satisfactory to the Trustee that such
interests are being acquired pursuant to an exemption from
Registration under the Securities Act. Beneficial interests in any
Unrestricted Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.07(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS
IN GLOBAL NOTES. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.07(b)(i) above,
the transferor of such beneficial interest must deliver to the
Registrar either
(A) both:
(1) a written order from a Participant or an
Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial
interest in another Global Note in an amount equal to the
beneficial interest to be transferred or exchanged, and
(2) instructions given in accordance with the
Applicable Procedures containing information regarding
the Participant account to be credited with such
increase;
PROVIDED that in no event shall a beneficial interests in
the Regulation S Temporary Global Note be transferred or
exchanged for beneficial interests in another Global Note
prior to (A) the expiration of the
31
Restricted Period and (B) the receipt by the Trustee of a
certificate in the form of Exhibit B or Exhibit C hereto;
or
(B) both:
(1) a written order from a Participant or an
Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an
amount equal to the beneficial interest to be transferred
or exchanged, and
(2) instructions given by the Depositary to the
Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to
effect the transfer or exchange referred to in (1) above;
PROVIDED that in no event shall Definitive Notes be
issued upon the transfer or exchange of beneficial
interests in the Regulation S Temporary Global Note prior
to (A) the expiration of the Restricted Period and (B)
the receipt by the Registrar of any certificates required
pursuant to Rule 903 under the Securities Act.
Upon consummation of an Exchange Offer by the Issuer in
accordance with Section 2.07(f) hereof, the requirements of this Section
2.07(b)(ii) shall be deemed to have been satisfied upon receipt by the Registrar
of the instructions contained in the Letter of Transmittal delivered by the
Holder of such beneficial interests in the Restricted Global Notes. Upon
satisfaction of all of the requirements for transfer or exchange of beneficial
interests in Global Notes contained in this Indenture and the Notes or otherwise
applicable under the Securities Act, the Trustee shall adjust the principal
amount of the relevant Global Notes pursuant to Section 2.07(i) hereof.
(iii) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER RESTRICTED
GLOBAL NOTE. A beneficial interest in any Restricted Global Note
(other than the Regulation S Temporary Global Note during the
Restricted Period) may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted
Global Note if the transfer complies with the requirements of Section
2.07(b)(ii) above and the Registrar receives the following:
(A) if the transferee shall take delivery in the form of
a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof; and
(B) if the transferee shall take delivery in the form of
a beneficial interest in a Regulation S Temporary Global Note,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2)
thereof.
(iv) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR BENEFICIAL INTERESTS IN THE UNRESTRICTED
GLOBAL NOTE. A beneficial interest in any
32
Restricted Global Note may be exchanged by any Holder thereof for a
beneficial interest in an Unrestricted Global Note or transferred to a
Person who takes delivery thereof in the form of a beneficial interest
in an Unrestricted Global Note if the exchange or transfer complies
with the requirements of Section 2.07(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a Person participating in the
distribution of the Exchange Notes or (2) a Person who is an
affiliate (as defined in Rule 144) of the Issuer;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant
to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such
beneficial interest for a beneficial interest in an
Unrestricted Global Note, a certificate from such Holder
in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(2) if the Holder of such beneficial interest in a
Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such Holder
in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or
(D) above at a time when an Unrestricted Global Note has not yet been issued,
the Issuer shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
33
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR
DEFINITIVE NOTES.
(i) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
RESTRICTED DEFINITIVE NOTES. If any Holder of a beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to
an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other
than that listed in subparagraph (B) above, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by
item (3)(b) thereof, if applicable; or
(D) if such beneficial interest is being transferred to
the Issuer or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.07(i) hereof, and the Issuer shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions
a Definitive Note in the appropriate principal amount. Any Definitive
Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.07(c) shall be registered in
such name or names and in such authorized denomination or
denominations as the Holder of such beneficial interest shall instruct
the Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Trustee shall deliver such
Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section
2.07(c)(i) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(ii) BENEFICIAL INTERESTS IN REGULATION S TEMPORARY GLOBAL
NOTE TO DEFINITIVE NOTES. Notwithstanding the above Section
2.07(c)(i), a beneficial interest in the
34
Regulation S Temporary Global Note may not be exchanged for a
Definitive Note or transferred to a Person who takes delivery thereof
in the form of a Definitive Note prior to (A) the expiration of the
Restricted Period and (B) the receipt by the Registrar of any
certificates required pursuant to Rule 903(b)(3)(ii)(B) under the
Securities Act.
(iii) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. A Holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder of such beneficial interest, in the case
of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not
(1) a Person participating in the distribution of the Exchange
Notes or (2) a Person who is an affiliate (as defined in Rule
144) of the Issuer;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant
to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such
beneficial interest for a Definitive Note that does not
bear the Private Placement Legend, a certificate from
such Holder in the form of Exhibit C hereto, including
the certifications in item (1)(b) thereof; or
(2) if the Holder of such beneficial interest in a
Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a Definitive Note that does not
bear the Private Placement Legend, a certificate from
such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
(iv) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. If any Holder of a beneficial interest
in an Unrestricted Global Note
35
proposes to exchange such beneficial interest for a Definitive Note or
to transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Definitive Note, then, upon satisfaction of
the conditions set forth in Section 2.07(b)(ii) hereof, the Trustee
shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.07(i) hereof, and
the Issuer shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note
in the appropriate principal amount. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section
2.07(c)(iii) shall be registered in such name or names and in such
authorized denomination or denominations as the Holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section
2.07(c)(iii) shall not bear the Private Placement Legend.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL
INTERESTS.
(i) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (1) thereof; or
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase
or cause to be increased the aggregate principal amount of, in
the case of clause (A) above, the appropriate Restricted Global
Note, in the case of clause (B) above, the 144A Global Note, and
in the case of clause (C) above, the Regulation S Global Note.
(ii) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of a Restricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Restricted Definitive Note to a
36
Person who takes delivery thereof in the form of a beneficial interest
in an Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a Person
participating in the distribution of the Exchange Notes or (2) a
Person who is an affiliate (as defined in Rule 144) of the
Issuer;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant
to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial interest
in the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs
in this Section 2.07(d)(ii), the Trustee shall cancel the Definitive Notes and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note.
(iii) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
37
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global Note has
not yet been issued, the Issuer shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of Definitive
Notes so transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE
NOTES. Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.07(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.07(e).
(i) RESTRICTED DEFINITIVE NOTES TO RESTRICTED DEFINITIVE
NOTES. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the
form of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer shall be made pursuant to Rule 144A
under the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item
(2) thereof; and
(C) if the transfer shall be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3) thereof, if
applicable.
(ii) RESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE
NOTES. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a Person
participating in the distribution of the Exchange Notes or (2) a
Person who is an affiliate (as defined in Rule 144) of the
Issuer;
38
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive
Notes proposes to exchange such Notes for an Unrestricted
Definitive Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in
item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive
Notes proposes to transfer such Notes to a Person who
shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such
Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Issuer to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) UNRESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE
NOTES. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) EXCHANGE OFFER. Upon the occurrence of the Exchange Offer
in accordance with the Registration Rights Agreement, the Issuer shall issue
and, upon receipt of an Authentication Order in accordance with Section 2.02,
the Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not
participating in a distribution of the Exchange Notes and (y) they are not
affiliates (as defined in Rule 144) of the Issuer, and accepted for exchange in
the Exchange Offer and (ii) Definitive Notes in an aggregate principal amount
equal to the principal amount of the Restricted Definitive Notes accepted for
exchange in the Exchange Offer. Concurrently with the issuance of such Notes,
the Trustee shall cause the aggregate principal amount of the applicable
Restricted Global Notes to be reduced accordingly, and the Issuer shall execute
and the Trustee shall authenticate and deliver to the Persons designated by the
Holders of Restricted Global Notes so accepted Unrestricted Global Notes in the
appropriate principal amount.
39
(g) LEGENDS. The following legends shall appear on the face
of all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) PRIVATE PLACEMENT LEGEND. Except as permitted below, each
Global Note and each Definitive Note (and all Notes issued in exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN
A TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER. THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT
OF THE ISSUER THAT:
(A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY
(i) (a) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (b) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE
UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE
904 UNDER THE SECURITIES ACT, (d) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
THE SECURITIES ACT (AN "INSTITUTIONAL
ACCREDITED INVESTOR")) THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED
FROM THE TRUSTEE) (AND BASED UPON AN OPINION
OF COUNSEL IF THE ISSUER SO REQUESTS), OR (e)
IN ACCORDANCE WITH
40
ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL IF THE ISSUER SO
REQUESTS),
(ii) TO THE ISSUER, OR
(iii) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THIS NOTE OF
THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
Notwithstanding the foregoing, any Global Note or Definitive Note
issued pursuant to subparagraph (b)(iv), (c)(ii), (c)(iii), (d)(ii),
(d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.07 (and all Notes
issued in exchange therefor or substitution thereof) shall not bear
the Private Placement Legend.
(ii) GLOBAL NOTE LEGEND. Each Global Note shall bear a legend
in substantially the following form:
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE
MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF
THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
ISSUER.
(iii) REGULATION S TEMPORARY GLOBAL NOTE LEGEND. The
Regulation S Temporary Global Note will bear a legend in substantially
the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE,
AND THE CONDITIONS AND PROCEDURES
41
GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED
IN THE INDENTURE (AS DEFINED HEREIN)."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such
time as all beneficial interests in a particular Global Note have been exchanged
for Definitive Notes or a particular Global Note has been redeemed, repurchased
or canceled in whole and not in part, each such Global Note shall be returned to
or retained and canceled by the Trustee in accordance with Section 2.12 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who shall take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who shall take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, the
Issuer shall execute and the Trustee shall authenticate Global Notes
and Definitive Notes upon the Issuer's order or at the Registrar's
request.
(ii) No service charge shall be made to a Holder of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Issuer may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other
than any such transfer taxes or similar governmental charge payable
upon exchange or transfer pursuant to Sections 2.11, 3.06, 3.08, 4.10,
4.14 and 9.05 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in
part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid and legally binding obligations of the
Issuer, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Global Notes or Definitive Notes
surrendered upon such registration of transfer or exchange.
(v) The Issuer shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.02 hereof and ending
at the close of business on the day of selection, (B) to register the
transfer of or to exchange any Note so selected for redemption in
whole or in part, except the unredeemed
42
portion of any Note being redeemed in part or (C) to register the
transfer of or to exchange a Note between a record date and the next
succeeding interest payment date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Issuer may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes,
and none of the Trustee, any Agent or the Issuer shall be affected by
notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02
hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section
2.07 to effect a registration of transfer or exchange may be submitted
by facsimile with the original to follow by first class mail.
Section 2.08. REPLACEMENT NOTES.
(a) If any mutilated Note is surrendered to the Trustee or
the Issuer and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Issuer shall issue and the Trustee,
upon receipt of an Authentication Order, shall authenticate a replacement Note
if the Trustee's requirements are met. If required by the Trustee or the Issuer,
an indemnity bond must be supplied by the Holder that is sufficient in the
judgment of the Trustee and the Issuer to protect the Issuer, the Trustee, any
Agent and any authenticating agent from any loss that any of them may suffer if
a Note is replaced. The Issuer may charge for its expenses in replacing a Note.
If such mutilated, lost, destroyed or stolen Note has become or is about to
become due and payable, the Issuer may in its discretion pay such Note instead
of replacing such Note.
(b) Every replacement Note is an additional obligation of the
Issuer and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
Section 2.09. OUTSTANDING NOTES.
(a) The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest in a Global Note effected
by the Trustee in accordance with the provisions hereof, and those described in
this Section as not outstanding. Except as set forth in Section 2.10 hereof, a
Note does not cease to be outstanding because the Issuer or an Affiliate of the
Issuer holds the Note; however, Notes held by the Issuer or a Subsidiary of the
Issuer shall not be deemed to be outstanding for purposes of Section 3.07(b)
hereof.
(b) If a Note is replaced pursuant to Section 2.08 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
43
(c) If the principal amount of any Note is considered paid
under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases
to accrue.
(d) If the Paying Agent (other than the Issuer, a Subsidiary
or an Affiliate of any of the foregoing) holds, on a redemption date or maturity
date, money sufficient to pay Notes payable on that date, then on and after that
date such Notes shall be deemed to be no longer outstanding and shall cease to
accrue interest.
Section 2.10. TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Issuer, or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer, shall be
considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are so owned
shall be so disregarded.
Section 2.11. TEMPORARY NOTES.
(a) Until certificates representing Notes are ready for
delivery, the Issuer may prepare and the Trustee, upon receipt of an
Authentication Order, shall authenticate temporary Notes. Temporary Notes shall
be substantially in the form of Definitive Notes but may have variations that
the Issuer considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Issuer shall prepare
and the Trustee shall authenticate definitive Notes in exchange for temporary
Notes.
(b) Holders of temporary Notes shall be entitled to all of
the benefits of this Indenture.
Section 2.12. CANCELLATION.
The Issuer at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall dispose of
canceled Notes in accordance with its procedures for the disposition of canceled
securities in effect as of the date of such disposition (subject to the record
retention requirement of the Exchange Act). Certification of the disposition of
all canceled Notes shall be delivered to the Issuer. The Issuer may not issue
new Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.
Section 2.13. DEFAULTED INTEREST.
If the Issuer defaults in a payment of interest on the Notes, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date or on the original record date, at
the option of the Issuer, in each case at the rate provided in the Notes and in
Section 4.01 hereof. The Issuer shall notify the Trustee in writing of the
amount of defaulted
44
interest proposed to be paid on each Note and the date of the proposed payment.
The Issuer shall fix or cause to be fixed each such special record date and
payment date, PROVIDED that no such special record date shall be less than 10
days prior to the related payment date for such defaulted interest. At least 15
days before the special record date, the Issuer (or, upon the written request of
the Issuer, the Trustee in the name and at the expense of the Issuer) shall mail
or cause to be mailed to Holders a notice that states the special record date,
the related payment date and the amount of such interest to be paid.
Section 2.14. CUSIP AND ISIN NUMBERS.
The Issuer in issuing the Notes may use CUSIP and ISIN numbers
(if then generally in use), and, if so, the Trustee shall use CUSIP and ISIN
numbers in notices of redemption as a convenience to Holders; PROVIDED that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Notes or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Issuer shall promptly notify the
Trustee of any change in the CUSIP and ISIN numbers.
ARTICLE THREE
REDEMPTION AND OFFERS TO
PURCHASE
Section 3.01. NOTICES TO TRUSTEE.
If the Issuer elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 30 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Notes to be redeemed and (iv) the redemption price.
Section 3.02. SELECTION OF NOTES TO BE REDEEMED.
(a) If less than all of the Notes are to be redeemed at any
time, the Trustee shall select the Notes to be redeemed among the Holders of the
Notes in compliance with the requirements of the principal national securities
exchange, if any, on which the Notes are listed or, if the Notes are not so
listed, on a PRO RATA basis, by lot or in accordance with any other method the
Trustee considers fair and appropriate. In the event of partial redemption by
lot, the particular Notes to be redeemed shall be selected, unless otherwise
provided herein, not less than 30 nor more than 60 days prior to the redemption
date by the Trustee from the outstanding Notes not previously called for
redemption.
(b) The Trustee shall promptly notify the Issuer in writing
of the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount at maturity thereof to be redeemed. No
Notes in amounts of $1,000 or less shall be redeemed in part. Notes and portions
of Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be
45
redeemed. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Notes called for redemption also apply to portions of
Notes called for redemption.
Section 3.03. NOTICE OF REDEMPTION.
(a) At least 30 days but not more than 60 days before a
redemption date, the Issuer shall mail or cause to be mailed, by first class
mail, a notice of redemption to each Holder whose Notes are to be redeemed at
its registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(i) the redemption date;
(ii) the redemption price;
(iii) if any Note is being redeemed in part, the portion of the
principal amount at maturity of such Note to be redeemed and that,
after the redemption date upon surrender of such Note, a new Note or
Notes in principal amount equal to the unredeemed portion of the
original Note shall be issued in the name of the Holder thereof upon
cancellation of the original Note;
(iv) the name and address of the Paying Agent;
(v) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price and become due on the
date fixed for redemption;
(vi) that, unless the Issuer defaults in making such
redemption payment, interest, if any, on Notes called for redemption
ceases to accrue on and after the redemption date;
(vii) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(viii) that no representation is made as to the correctness or
accuracy of the CUSIP or ISIN number, if any, listed in such notice or
printed on the Notes.
(b) At the Issuer's request (which may be revoked at any time
prior to the time at which the Trustee shall have given notice to the Holders),
the Trustee shall give the notice of redemption in the Issuer's name and at its
expense; PROVIDED, HOWEVER, that the Issuer shall have delivered to the Trustee,
at least 45 days prior to the redemption date (or such lesser time as the
Trustee may accept in its sole discretion), an Officers' Certificate requesting
that the Trustee give such notice and setting forth the information to be stated
in such notice as provided in the preceding paragraph. The notice, if mailed in
the manner provided herein shall be presumed to have been given, whether or not
the Holder receives such notice.
46
Section 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05. DEPOSIT OF REDEMPTION PRICE.
(a) Prior to 10:00 a.m.,
New York City time, on the
redemption date, the Issuer shall deposit with the Trustee or with the Paying
Agent money sufficient to pay the redemption price of and accrued interest and
Liquidated Damages, if any, on all Notes to be redeemed on that date. The
Trustee or the Paying Agent shall promptly return to the Issuer any money
deposited with the Trustee or the Paying Agent by the Issuer in excess of the
amounts necessary to pay the redemption price of, and accrued interest on, all
Notes to be redeemed.
(b) If the Issuer complies with the provisions of the
preceding paragraph, on and after the redemption date, interest shall cease to
accrue on the Notes or the portions of Notes called for redemption. If a Note is
redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid to the
Person in whose name such Note was registered at the close of business on such
record date. If any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Issuer to comply with the
preceding paragraph, interest shall be paid on the unpaid principal, from the
redemption date until such principal is paid, and to the extent lawful on any
interest not paid on such unpaid principal, in each case at the rate provided in
the Notes and in Section 4.01 hereof.
Section 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Issuer
shall issue and the Trustee shall authenticate for the Holder at the expense of
the Issuer a new Note equal in principal amount to the unredeemed portion of the
Note surrendered. No Notes in denominations of $1,000 or less shall be redeemed
in part.
Section 3.07. OPTIONAL REDEMPTION.
(a) Except as set forth in clause (b) of this Section 3.07,
the Issuer shall not have the option to redeem the Notes pursuant to this
Section 3.07 prior to July 15, 2007. Thereafter, the Issuer may redeem all or a
part of the Notes upon not less than 30 nor more than 60 days' notice, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the
applicable redemption date, if redeemed during the twelve-month period beginning
on July 15 of the years indicated below (subject to the right of Holders on the
relevant record date to receive interest due on the related interest payment
date):
47
YEAR PERCENTAGE
---- ----------
2007.............................. 104.50%
2008.............................. 102.25%
2009 and thereafter............... 100.00%
(b) At any time prior to July 15, 2006, the Issuer may redeem
up to 35% of the aggregate principal amount of Notes originally issued hereunder
(calculated giving effect to any issuance of Additional Notes) at a redemption
price of 109% of the principal amount thereof, plus accrued and unpaid interest
and Liquidated Damages, if any, to the redemption date, with the net cash
proceeds of one or more Equity Offerings of the Issuer; PROVIDED that (A) at
least 65% of the aggregate principal amount of the Notes originally issued under
this Indenture (calculated giving effect to any issuance of Additional Notes)
remains outstanding immediately after the occurrence of such redemption,
excluding Notes held by the Issuer and its Subsidiaries; and (B) the redemption
must occur within 90 days of the date of the closing of such Equity Offering.
(c) Any redemption pursuant to this Section 3.07 shall be
made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Section 3.08. REPURCHASE OFFERS.
In the event that, pursuant to Section 4.10 or 4.14 hereof, the
Issuer shall be required to commence an offer to all Holders to purchase their
respective Notes (a "REPURCHASE OFFER"), it shall follow the procedures
specified in such Sections and, to the extent not inconsistent therewith, the
procedures specified below.
The Repurchase Offer shall remain open for a period of no less
than 30 days and no more than 60 days following its commencement, except to the
extent that a longer period is required by applicable law (the "OFFER PERIOD").
No later than three Business Days after the termination of the Offer Period (the
"PURCHASE DATE"), the Issuer shall purchase the principal amount of Notes
required to be purchased pursuant to Section 4.10 or 4.14 hereof (the "OFFER
AMOUNT") or, if less than the Offer Amount has been tendered, all Notes tendered
in response to the Repurchase Offer. Payment for any Notes so purchased shall be
made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and
on or before the related interest payment date, any accrued and unpaid interest
shall be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Repurchase Offer.
Upon the commencement of a Repurchase Offer, the Issuer shall
send, by first class mail, a notice to the Trustee and each of the Holders, with
a copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Repurchase
Offer. The Repurchase Offer shall be made to all Holders. The notice, which
shall govern the terms of the Repurchase Offer, shall state:
48
(i) that the Repurchase Offer is being made pursuant to this
Section 3.08 and Section 4.10 or Section 4.14 hereof, and the length
of time the Repurchase Offer shall remain open;
(ii) the Offer Amount, the purchase price and the Purchase
Date;
(iii) that any Note not tendered or accepted for payment shall
continue to accrue interest and Liquidated Damages, if any;
(iv) that, unless the Issuer defaults in making such payment,
any Note (or portion thereof) accepted for payment pursuant to the
Repurchase Offer shall cease to accrue interest and Liquidated
Damages, if any, after the Purchase Date;
(v) that Holders electing to have a Note purchased pursuant
to a Repurchase Offer may elect to have Notes purchased in integral
multiples of $1,000 only;
(vi) that Holders electing to have a Note purchased pursuant
to any Repurchase Offer shall be required to surrender the Note, with
the form entitled "Option of Holder to Elect Purchase" on the reverse
of the Note completed, or transfer by book-entry transfer, to the
Issuer, a depositary, if appointed by the Issuer, or a Paying Agent at
the address specified in the notice at least three days before the
Purchase Date;
(vii) that Holders shall be entitled to withdraw their election
if the Issuer, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is withdrawing
his election to have such Note purchased;
(viii) that, if the aggregate amount of Notes surrendered by
Holders exceeds the Offer Amount, the Trustee shall, subject in the
case of a Repurchase Offer made pursuant to Section 4.10 to the
provisions of Section 4.10, select the Notes to be purchased on a pro
rata basis (with such adjustments as may be deemed appropriate by the
Trustee so that only Notes in denominations of $1,000, or integral
multiples thereof, shall be purchased); and
(ix) that Holders whose Notes were purchased only in part
shall be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer).
On the Purchase Date, the Issuer shall, to the extent lawful,
subject in the case of a Repurchase Offer made pursuant to Section 4.10 to the
provisions of Section 4.10, accept for payment on a pro rata basis to the extent
necessary, the Offer Amount of Notes (or portions thereof) tendered pursuant to
the Repurchase Offer, or if less than the Offer Amount has been tendered, all
Notes tendered, and shall deliver to the Trustee an Officers' Certificate
stating that such Notes (or portions thereof) were accepted for payment by the
Issuer in accordance with the terms of this Section 3.08. The Issuer, the
Depositary or the Paying Agent, as the case may be, shall promptly (but in any
case not later than three days after the Purchase Date) mail or deliver
49
to each tendering Holder an amount equal to the purchase price of Notes tendered
by such Holder, as the case may be, and accepted by the Issuer for purchase, and
the Issuer, shall promptly issue a new Note. The Trustee, upon written request
from the Issuer shall authenticate and mail or deliver such new Note to such
Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed or delivered by
the Issuer to the respective Holder thereof. The Issuer shall publicly announce
the results of the Repurchase Offer on the Purchase Date.
The Issuer shall comply with the requirements of Rule 14e-1 under
the Exchange Act, and any other securities laws and regulations thereunder to
the extent such laws or regulations are applicable in connection with each
repurchase of the Notes pursuant to a Repurchase Offer. To the extent that the
provisions of any securities laws or regulations conflict with Section 4.10 or
4.14 of this Indenture, the Issuer will comply with the applicable securities
laws and regulations and shall not be deemed to have breached its obligations
under Section 3.08, 4.10 or 4.14 by virtue of such conflict.
ARTICLE FOUR
COVENANTS
Section 4.01. PAYMENT OF NOTES.
(a) The Issuer shall pay or cause to be paid the principal
of, premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Issuer or
one of its Subsidiaries, holds as of 11:00 a.m. Eastern Time on the due date
money deposited by the Issuer in immediately available funds and designated for
and sufficient to pay all principal, premium, if any, and interest then due. The
Issuer shall pay all Liquidated Damages, if any, in the same manner on the dates
and in the amounts set forth in the Registration Rights Agreement.
(b) The Issuer shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then applicable interest rate on the
Notes to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest, and Liquidated Damages (without regard to any applicable grace period)
at the same rate to the extent lawful.
Section 4.02. MAINTENANCE OF OFFICE OR AGENCY.
(a) The Issuer shall maintain in the Borough of Manhattan,
The City of
New York, an office or agency (which may be an office of the Trustee
or an agent of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Issuer in respect of the Notes and this Indenture may be
served. The Issuer shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Issuer shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the
50
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee.
(b) The Issuer may also from time to time designate one or
more other offices or agencies where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; PROVIDED, HOWEVER, that no such designation or rescission shall in
any manner relieve the Issuer of its obligation to maintain an office or agency
in the Borough of Manhattan, The City of
New York for such purposes. The Issuer
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
(c) The Issuer hereby designates the Corporate Trust Office
of the Trustee as one such office or agency of the Issuer in accordance with
Section 2.04 of this Indenture.
Section 4.03. REPORTS.
(a) Whether or not required by the SEC, so long as any Notes
are outstanding, DigitalNet Holdings or the Issuer will furnish to the Holders
of Notes, within the time periods specified in the SEC's rules and regulations:
(i) all quarterly and annual financial information that would
be required to be contained in a filing with the SEC on Forms 10-Q and
10-K if DigitalNet Holdings were required to file such Forms,
including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and, with respect to the annual
information only, a report on the annual financial statements by
DigitalNet Holdings' certified independent accountants; and
(ii) all current reports that would be required to be filed with
the SEC on Form 8-K if DigitalNet Holdings were required to file such
reports.
(b) In addition, after consummation of the Exchange Offer,
whether or not required by the SEC, DigitalNet Holdings or the Issuer will file
a copy of all of the information and reports referred to in clauses (i) and (ii)
above with the SEC for public availability within the time periods specified in
the SEC's rules and regulations (unless the SEC will not accept such a filing)
and make such information available to securities analysts and prospective
investors upon request. In addition, DigitalNet Holdings, the Issuer and the
Subsidiary Guarantors will, for so long as any Notes remain outstanding, furnish
to the Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
Section 4.04. COMPLIANCE CERTIFICATE.
(a) The Issuer and each Guarantor (to the extent that such
Guarantor is so required under the TIA) shall deliver to the Trustee, within 90
days after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Issuer and its Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officers with a
view to determining whether the Issuer has kept, observed, performed and
fulfilled its obligations under this Indenture, and further stating, as to each
such Officer signing
51
such certificate, that to the best of his or her knowledge, the Issuer has kept,
observed, performed and fulfilled its obligations under this Indenture and is
not in default in the performance or observance of any of the terms, provisions
and conditions of this Indenture (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default of which he or
she may have knowledge and what action the Issuer is taking or proposes to take
with respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Notes is prohibited or if such event
has occurred, a description of the event and what action the Issuer is taking or
proposes to take with respect thereto.
(b) The Issuer shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers Certificate specifying such
Default or Event of Default and what action the Issuer is taking or proposes to
take with respect thereto.
Section 4.05. TAXES.
The Issuer shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, any taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or
where the failure to effect such payment would not have a material adverse
effect on the Issuer.
Section 4.06. STAY, EXTENSION AND USURY LAWS.
The Issuer and each of the Guarantors covenant (to the extent
that it may lawfully do so) that it shall not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture; and the
Issuer and each of the Guarantors (to the extent that it may lawfully do so)
hereby expressly waive all benefit or advantage of any such law, and covenant
that they shall not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
Section 4.07. RESTRICTED PAYMENTS.
(a) The Issuer will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any other payment or
distribution on account of the Issuer's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any
payment in connection with any merger or consolidation involving the
Issuer or any of its Restricted Subsidiaries) or to the direct or
indirect holders of the Issuer's or any of its Restricted
Subsidiaries' Equity Interests in their capacity as such, other than
dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Issuer or to the Issuer or a Restricted
Subsidiary of the Issuer;
52
(ii) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation involving the Issuer) (a) any Equity Interests of the
Issuer, (b) any Equity Interests of any direct or indirect parent of
the Issuer (including, without limitation, DigitalNet Holdings) or (c)
any Equity Interests of any Subsidiary of the Issuer (other than
Equity Interests of a Restricted Subsidiary);
(iii) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any
Indebtedness that is subordinated to the Notes or the Note Guarantees,
except (a) a payment of interest or principal at the Stated Maturity
thereof or (b) a purchase or other acquisition for value in
anticipation of satisfying a scheduled maturity, sinking fund or
amortization obligation or principal repayment obligation, in each
case, due within one year of the date of such purchase or other
acquisition; or
(iv) make any Restricted Investment (all such payments and
other actions set forth in Sections 4.07(a)(i) through (iv) above
being collectively referred to as "RESTRICTED PAYMENTS"),
unless, at the time of and after giving effect to such Restricted Payment:
(A) no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof; and
(B) the Issuer would, at the time of such Restricted
Payment and after giving pro forma effect thereto as if such
Restricted Payment had been made at the beginning of the
applicable four-quarter period, have been permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in Section 4.09(a); and
(C) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Issuer and
its Restricted Subsidiaries after the date of this Indenture
(excluding Restricted Payments permitted by Sections (ii), (iii),
(iv), (vi), (vii), (viii) and (x) of Section 4.07(b) below), is
less than the sum, without duplication, of:
(1) 50% of the Consolidated Net Income of the
Issuer for the period (taken as one accounting period)
from the beginning of the fiscal quarter during which the
Notes are issued to the end of the Issuer's most recently
ended fiscal quarter for which internal financial
statements are available at the time of such Restricted
Payment (or, if such Consolidated Net Income for such
period is a deficit, less 100% of such deficit); PLUS
(2) 100% of the aggregate net cash proceeds
received by the Issuer since the date of this Indenture
as a contribution to its common equity capital or from
the issue or sale of Equity Interests of the Issuer
(other than Disqualified Stock) or from the issue or sale
of convertible or exchangeable Disqualified Stock or
convertible or exchangeable debt
53
securities of the Issuer that have been converted into or
exchanged for such Equity Interests (other than Equity
Interests (or Disqualified Stock or debt securities) sold
to a Subsidiary of the Issuer); PLUS
(3) to the extent that any Restricted Investment
that was made after the date of this Indenture is sold
for cash or otherwise liquidated or repaid for cash, the
lesser of (i) the cash return of capital with respect to
such Restricted Investment (less the cost of disposition,
if any) and (ii) the initial amount of such Restricted
Investment; PLUS
(4) if an Unrestricted Subsidiary of the Issuer is
redesignated as a Restricted Subsidiary, an amount equal
to the lesser of (i) the portion (proportionate to the
Issuer's equity interest in such Person) of the fair
market value of the net assets of such Person at the time
such Person is designated a Restricted Subsidiary of the
Issuer and (ii) the amount of Restricted Investments
previously made by the Issuer or any Restricted
Subsidiary of the Issuer in such Person; PLUS
(5) the amount of any prior Restricted Investment
consisting of a Guarantee entered into by the Issuer or
any Restricted Subsidiary of the Issuer if at the time
such Guarantee is released neither the Issuer nor such
Restricted Subsidiary has made any payment on such
Guarantee.
(b) Section 4.07(a) will not prohibit:
(i) the payment of any dividend within 60 days after the date
of declaration thereof, if at said date of declaration such payment
would have complied with the provisions of this Indenture;
(ii) so long as no Default has occurred and is continuing, the
redemption, repurchase, retirement, defeasance or other acquisition of
any subordinated Indebtedness of the Issuer or any Subsidiary
Guarantor or of any Equity Interests of the Issuer in exchange for, or
out of the net cash proceeds of the sale within 30 days (other than to
a Subsidiary of the Issuer) of, Equity Interests of the Issuer (other
than Disqualified Stock); PROVIDED that the amount of any such net
cash proceeds that are utilized for any such redemption, repurchase,
retirement, defeasance or other acquisition shall be excluded from
Section 4.07(a)(C) (2);
(iii) so long as no Default has occurred and is continuing, the
defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness of the Issuer or any Subsidiary Guarantor
with the net cash proceeds from an incurrence of Permitted Refinancing
Indebtedness;
(iv) the payment of any dividend or other distribution in the
nature of a dividend by a Restricted Subsidiary of the Issuer to the
holders of its common Equity Interests on a pro rata basis;
54
(v) so long as no Default has occurred and is continuing,
the repurchase, redemption or other acquisition or retirement for
value of any Equity Interests of the Issuer or any Restricted
Subsidiary of the Issuer (or the payment of dividends to any direct
parent of the Issuer, including, without limitation, DigitalNet
Holdings, to be used solely for the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of any
direct parent of the Issuer, including, without limitation, DigitalNet
Holdings), in each case, held by any current or former employee,
officer, director or consultant of the Issuer or any Restricted
Subsidiary of the Issuer or any director or former director of any
direct parent of the Issuer, including, without limitation, DigitalNet
Holdings, pursuant to any management equity subscription agreement,
stock option, restricted stock or similar plans or other agreement;
PROVIDED that the aggregate price paid for all such repurchased,
redeemed, acquired or retired Equity Interests shall not exceed $2.5
million in any calendar year; PROVIDED, HOWEVER, that the Issuer and
its Restricted Subsidiaries may carry forward and make in a subsequent
calendar year, in addition to the amounts permitted for such calendar
year pursuant to this Section 4.07(b)(v), the amount of such
purchases, acquisitions, redemptions or retirements for value
permitted to have been made pursuant to this Section 4.07(b)(v) but
not made in any preceding calendar year up to a maximum of $7.5
million in any calendar year pursuant to this Section 4.07(b)(v);
(vi) so long as no Default has occurred and is continuing,
dividends or other distributions to DigitalNet Holdings so that
DigitalNet Holdings may repurchase shares of Class B Redeemable
Convertible Preferred Stock at a purchase price not to exceed the
liquidation preference thereof in one or more transactions; PROVIDED,
HOWEVER, that at the time of any such dividend and the related
repurchase the Fixed Charge Coverage Ratio for the Issuer's most
recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date of such
repurchase would have been not less than 3.5 to 1, determined on a pro
forma basis, as if such dividend, the related repurchase and any
incurrence of Indebtedness related to such repurchase had occurred at
the beginning of such four-quarter period;
(vii) dividends to any direct parent of the Issuer, including,
without limitation, DigitalNet Holdings, so that DigitalNet Holdings
may (a) pay corporate operating (including, without limitation,
directors fees and expenses and indemnification payments to directors)
and overhead expenses in the ordinary course of business related to
the Issuer and its Subsidiaries, such amount not to exceed $750,000 in
any fiscal year of the Issuer, (b) pay the cost of directors' and
officers' insurance and the costs incurred in connection with any
financing, the proceeds of which are or are intended to be contributed
to the Issuer or a Restricted Subsidiary, and (c) pay any taxes which
are due and payable in the ordinary course of business by DigitalNet
Holdings as part of the consolidated group consisting of DigitalNet
Holdings, any Subsidiary of DigitalNet Holdings that is the direct
parent of the Issuer, the Issuer and the Issuer's Subsidiaries;
(viii) repurchases of Equity Interests deemed to occur upon
exercise of options or warrants if such Equity Interests represent a
portion of the exercise price of such options or warrants;
55
(ix) the making of cash payments in lieu of the issuance of
fractional shares in connection with the exercise of warrants, options
or other securities convertible into or exchangeable for Equity
Interests of the Issuer or any direct parent of the Issuer, including,
without limitation, DigitalNet Holdings; and
(x) so long as no Default has occurred and is continuing,
Restricted Payments in an amount which, when taken together with all
other Restricted Payments made pursuant to this Section 4.07(b)(x),
does not exceed $5.0 million.
The amount of all Restricted Payments (other than cash) shall be
the fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued to or by the Issuer or such
Subsidiary, as the case may be, pursuant to the Restricted Payment. For purposes
of this covenant, the amount of any Restricted Payment made or returned, if
other than in cash, shall be the fair market value thereof, as determined in the
good faith reasonable judgment of the Issuer's Board of Directors, unless stated
otherwise, at the time made or returned, as applicable. Additionally,
concurrently with each Restricted Payment, the Issuer shall deliver an Officers'
Certificate to the Trustee describing in reasonable detail the nature of such
Restricted Payment in excess of $2.5 million, stating the amount of such
Restricted Payment, stating in reasonable detail the provisions of this
Indenture pursuant to which such Restricted Payment was made and certifying that
such Restricted Payment was made in compliance with the terms of this Indenture.
Section 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES.
(a) The Issuer will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or permit to exist or
become effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(i) pay dividends or make any other distributions on
its Capital Stock to the Issuer or any of its Restricted
Subsidiaries, or with respect to any other interest or
participation in, or measured by, its profits, or pay any
Indebtedness owed to the Issuer or any of its Restricted
Subsidiaries (it being understood that the priority of any
preferred stock in receiving dividends or liquidating
distributions prior to dividends or liquidating distributions
being paid on common stock shall not be deemed a restriction on
the ability to make distributions on Capital Stock);
(ii) make loans or advances to the Issuer or any of its
Restricted Subsidiaries (it being understood that the
subordination of loans or advances made to any Restricted
Subsidiary to other Indebtedness incurred by any Restricted
Subsidiary, or the waiver or deferral of the rights of a
Guarantor to reimbursement, indemnity, subrogation or similar
rights, shall not be deemed a restriction on the ability to make
loans or advances); or
(iii) transfer any of its properties or assets to the
Issuer or any of its Restricted Subsidiaries.
56
(b) However, the preceding restrictions will not apply to
encumbrances or restrictions existing under or by reason of:
(i) Existing Indebtedness or the Credit Facilities, in
each case, as in effect on the date of this Indenture and any
amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings thereof,
PROVIDED that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or
refinancings are no more restrictive, taken as a whole, than
those contained in such Existing Indebtedness or the Credit
Facilities, as in effect on the date of this Indenture;
(ii) this Indenture, the Notes and the Note Guarantees;
(iii) applicable law or any regulation or order required
by any governmental authority or any contracts with customers
entered into in the ordinary course of business that impose
restrictions of the nature described in Section 4.08(a)(iii);
(iv) any instrument or agreement governing
Indebtedness, Capital Stock or assets of a Person acquired by the
Issuer or any of its Restricted Subsidiaries as in effect at the
time of such acquisition (except to the extent such Indebtedness
was incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable
to any Person, or the properties or assets of any Person, other
than the Person or any of its Subsidiaries, or the property or
assets of the Person or any of its Subsidiaries, so acquired,
PROVIDED that, in the case of Indebtedness, such Indebtedness was
permitted by the terms of this Indenture to be incurred;
(v) customary non-assignment provisions in leases
entered into in the ordinary course of business;
(vi) purchase money obligations or Capital Lease
Obligations for property acquired in the ordinary course of
business that impose restrictions on the property so acquired of
the nature described in Section 4.08(a)(iii);
(vii) any agreement for the sale or other disposition of
a Restricted Subsidiary that restricts distributions by that
Restricted Subsidiary pending its sale or other disposition or
any agreement for the sale or other disposition of any property
or assets that restricts the sale or other disposition of such
property or assets pending such sale or other disposition;
(viii) Permitted Refinancing Indebtedness, PROVIDED that
the restrictions contained in the agreements governing such
Permitted Refinancing Indebtedness are no more restrictive, taken
as a whole, than those contained in the agreements governing the
Indebtedness being refinanced;
(ix) Permitted Liens that impose encumbrances or
restrictions of the nature described in Section 4.08(a)(iii);
57
(x) restrictions imposed by customary provisions in
joint venture agreements that restrict the transfer of the
interest in the joint venture;
(xi) restrictions on cash or other deposits or net
worth imposed by customers or required by insurance, surety or
bonding companies under contracts entered into in the ordinary
course of business;
(xii) customary restrictions imposed on the transfer and
assignment of intellectual property; and
(xiii) encumbrances or restrictions contained in any
Indebtedness incurred by a Foreign Subsidiary that apply only to
such Foreign Subsidiary.
Section 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
(a) The Issuer will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "INCUR") any
Indebtedness (including Acquired Debt), and the Issuer will not issue any
Disqualified Stock and the Issuer will not permit any of its Restricted
Subsidiaries to issue any Disqualified Stock or preferred stock; PROVIDED,
HOWEVER, that the Issuer and the Subsidiary Guarantors may incur Indebtedness
(including Acquired Debt), if the Fixed Charge Coverage Ratio for the Issuer's
most recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such additional
Indebtedness is incurred would have been at least 2.0 to 1, determined on a pro
forma basis (including a pro forma application of the net proceeds therefrom),
as if the additional Indebtedness had been incurred at the beginning of such
four-quarter period.
(b) Section 4.09(a) shall not prohibit the incurrence of any
of the following items of Indebtedness (collectively, "PERMITTED DEBT"):
(i) the incurrence by the Issuer and the Subsidiary
Guarantors of Indebtedness under Credit Facilities (and the
incurrence by the Subsidiary Guarantors of guarantees thereof) in
an aggregate principal amount at any one time outstanding (with
letters of credit being deemed to have a principal amount equal
to the maximum potential liability of the Issuer and its
Restricted Subsidiaries thereunder) not to exceed the greater of
(a) $60.0 million and (b) 90% (or such applicable lower
percentage or percentages specified in the relevant Credit
Facilities in effect from time to time pursuant to this Section
4.09(b)(i) with respect to specified categories of accounts
receivable) of the consolidated book value of the accounts
receivable of the Issuer and the Subsidiary Guarantors as set
forth on the most recent available quarterly or annual
consolidated balance sheet of the Issuer and its Restricted
Subsidiaries prepared in conformity with GAAP;
(ii) the incurrence by the Issuer and its Restricted
Subsidiaries of the Existing Indebtedness;
58
(iii) the incurrence by the Issuer and the Subsidiary
Guarantors of Indebtedness represented by the Notes and the
related Note Guarantees to be issued on the date of this
Indenture and the Exchange Notes and the related Note Guarantees
to be issued pursuant to the Registration Rights Agreement;
(iv) the incurrence by the Issuer or any Restricted
Subsidiary of Indebtedness represented by Capital Lease
Obligations, mortgage financings or purchase money obligations,
in each case, incurred for the purpose of financing all or any
part of the purchase price or cost of construction or improvement
of property, plant or equipment used in the business of the
Issuer or such Subsidiary Guarantor, in an aggregate principal
amount, including all Permitted Refinancing Indebtedness incurred
to refund, refinance or replace any Indebtedness incurred
pursuant to this 4.09(b)(iv), not to exceed $15.0 million at any
time outstanding;
(v) the incurrence by the Issuer or any Restricted
Subsidiary of Permitted Refinancing Indebtedness in exchange for,
or the net proceeds of which are used to refund, refinance or
replace Indebtedness (other than intercompany Indebtedness) that
was permitted by this Indenture to be incurred under Section
4.09(a) or Section 4.09(b)(ii), (iii), (iv), (v), (xii) or
(xiii);
(vi) the incurrence by the Issuer or any of its
Restricted Subsidiaries of intercompany Indebtedness between or
among the Issuer and any of its Restricted Subsidiaries;
PROVIDED, HOWEVER, that:
(A) if the Issuer or any Subsidiary Guarantor
is the obligor on such Indebtedness, such Indebtedness
must be expressly subordinated to the prior payment in
full in cash of all Obligations with respect to the
Notes, in the case of the Issuer, or the Note Guarantee,
in the case of a Subsidiary Guarantor; and
(B) (i) any subsequent issuance or transfer of
Equity Interests that results in any such Indebtedness
being held by a Person other than the Issuer or a
Restricted Subsidiary thereof and (ii) any sale or other
transfer of any such Indebtedness to a Person that is not
either the Issuer or a Restricted Subsidiary thereof,
shall be deemed, in each case, to constitute an
incurrence of such Indebtedness by the Issuer or such
Restricted Subsidiary, as the case may be, that was not
permitted by this Section 4.09(b)(vi);
(vii) the incurrence by the Issuer or any of its
Restricted Subsidiaries of Hedging Obligations that are incurred
for non-speculative purposes, including for the purpose of fixing
or hedging interest rate risk with respect to any Indebtedness
that is permitted by the terms of this Indenture to be
outstanding or for the purpose of fixing or hedging currency
exchange rate risk or commodity price risk and not for
speculative purposes; PROVIDED that Hedging Obligations for the
purpose of fixing or hedging interest rate risk must relate to
Indebtedness that is permitted by the terms of this Indenture to
be outstanding;
59
(viii) the guarantee by the Issuer or any Subsidiary
Guarantor of Indebtedness of the Issuer or a Restricted
Subsidiary of the Issuer that was permitted to be incurred by
this Section 4.09;
(ix) the incurrence by the Issuer or any Restricted
Subsidiary of Indebtedness in respect of letters of credit,
performance, bid, appeal and surety or similar bonds and
completion guarantees provided by the Issuer or any Restricted
Subsidiary in the ordinary course of business or pursuant to
workers' compensation claims or self-insurance obligations and
not in connection with the borrowing of money;
(x) the incurrence by the Issuer or any Restricted
Subsidiary of Indebtedness arising from agreements of the Issuer
or such Subsidiary providing for indemnification, earn-outs,
adjustment of purchase price or similar obligations, including
letters of credit or bonds backing-up any such obligation, in
each case, incurred or assumed in connection with the acquisition
or disposition of any business, assets or Equity Interests by the
Issuer or a Restricted Subsidiary, other than Guarantees of
Indebtedness of any other Person acquiring all or any portion of
such business, assets or Equity Interests incurred for the
purpose of financing any portion of such acquisition; PROVIDED
that in the case of a disposition, the maximum liability in
respect of such Indebtedness shall at no time exceed the gross
proceeds including non-cash proceeds (the fair market value of
such non-cash proceeds being determined at the time received and
without giving effect to any subsequent changes in value)
actually received by the Issuer or such Restricted Subsidiary in
connection with such disposition;
(xi) the incurrence by the Issuer or any Restricted
Subsidiary of Indebtedness in respect of netting services,
overdraft protection and otherwise in connection with deposit
accounts; PROVIDED that such Indebtedness is extinguished within
five Business Days of its incurrence;
(xii) the incurrence by Foreign Subsidiaries of
Indebtedness in an aggregate principal amount at any time
outstanding, including all Permitted Refinancing Indebtedness
incurred to refund, refinance or replace any Indebtedness
incurred pursuant to this Section 4.09(b)(xii), not to exceed
$10.0 million; PROVIDED, that at the time of incurrence, the
Issuer could incur at least $1.00 of additional Indebtedness
pursuant to Section 4.09(a); and
(xiii) the incurrence by the Issuer or any Subsidiary
Guarantor of additional Indebtedness in an aggregate principal
amount (or accreted value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness
incurred to refund, refinance or replace any Indebtedness
incurred pursuant to this Section 4.09(b)(xiii), not to exceed
$10.0 million.
Notwithstanding anything to the contrary contained in this
Section 4.09, (a) the Issuer shall not, and shall not permit any Subsidiary
Guarantor to, incur any Indebtedness pursuant to this Section 4.09 if the
proceeds thereof are used, directly or indirectly, to Refinance
60
any Subordinated Obligations unless such Indebtedness shall be subordinated to
the Notes or the applicable Subsidiary Guarantee, as the case may be, to at
least the same extent as such Subordinated Obligations and (b) the Issuer shall
not permit any Restricted Subsidiary of the Issuer that is not a Subsidiary
Guarantor to incur any Indebtedness pursuant to this Section 4.09 if the
proceeds thereof are used, directly or indirectly, to Refinance any Indebtedness
of the Issuer or any Subsidiary Guarantor.
For purposes of determining compliance with this Section 4.09, in
the event that any proposed Indebtedness meets the criteria of more than one of
the categories of Permitted Debt described in Sections 4.09(b)(i) through
(xiii), or is entitled to be incurred pursuant to Section 4.09(a), the Issuer
will be permitted to classify such item of Indebtedness on the date of its
incurrence, or later reclassify all or a portion of such item of Indebtedness,
in any manner that complies with this Section 4.09. Indebtedness under Credit
Facilities incurred or outstanding on the date on which Notes are first issued
and authenticated under this Indenture shall be deemed to have been incurred on
such date in reliance on the exception provided by Section 4.09(b)(i).
The accrual of interest, the accretion or amortization of
original issue discount and the payment of interest on any Indebtedness of the
Issuer or any Restricted Subsidiary in the form of additional Indebtedness with
the same terms will not be deemed to be an incurrence of Indebtedness for
purposes of this covenant; PROVIDED, in each such case, that the amount thereof
is included in Fixed Charges of the Issuer as accrued.
For the purposes of determining compliance with any restriction
on the incurrence of Indebtedness where Indebtedness is denominated in a
currency other than U.S. dollars, the amount of such Indebtedness will be the
U.S. Dollar Equivalent determined on the date of such determination; PROVIDED,
HOWEVER, that if any such Indebtedness that is denominated in a different
currency is subject to a Currency Exchange Agreement with respect to U.S.
dollars covering principal amounts payable on such Indebtedness, the amount of
such Indebtedness expressed in U.S. dollars will be adjusted to take into
account the effect of such an agreement. The principal amount of any
Indebtedness incurred in the same currency as the Indebtedness being Refinanced
will be the U.S. Dollar Equivalent of the Indebtedness Refinanced determined on
the date such Indebtedness being Refinanced was initially incurred.
Notwithstanding any other provision of this Section 4.09, the maximum amount
that the Issuer or a Restricted Subsidiary of the Issuer may incur pursuant to
this Section 4.09 shall not be deemed to be exceeded, with respect to
outstanding Indebtedness, due solely to the result of fluctuations in the
exchange rates of currencies.
Section 4.10. ASSET SALES.
(a) The Issuer will not, and will not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless:
(i) the Issuer (or the Restricted Subsidiary, as the
case may be) receives consideration at the time of such Asset
Sale at least equal to the fair market value of the assets or
Equity Interests issued or sold or otherwise disposed of,
61
(ii) such fair market value is determined by the
Issuer's Board of Directors and evidenced by a resolution of such
Board of Directors set forth in an Officers' Certificate
delivered to the Trustee; and
(iii) at least 75% of the consideration therefor
received by the Issuer or such Restricted Subsidiary is in the
form of cash or Cash Equivalents. For purposes of this Section
4.10(a)(iii), each of the following shall be deemed to be cash:
(A) any liabilities (as shown on the Issuer's
or such Restricted Subsidiary's most recent balance
sheet), of the Issuer or any Restricted Subsidiary (other
than contingent liabilities and liabilities that are by
their terms subordinated to the Notes or any Note
Guarantee) that are either (i) assumed by the transferee
of any such assets pursuant to a customary written
novation agreement that releases the Issuer or such
Restricted Subsidiary from further liability or (ii) in
respect of which the Issuer and any Restricted Subsidiary
are otherwise released from further liability by
operation of law; and
(B) any securities, notes or other obligations
received by the Issuer or any such Restricted Subsidiary
from such transferee that are contemporaneously or within
90 days converted by the Issuer or such Restricted
Subsidiary into cash (to the extent of the cash received
in that conversion).
Notwithstanding the foregoing, the Issuer and its Restricted
Subsidiaries may exchange property or assets held by any of them for property or
assets held by any other Person (or Capital Stock of a Person (a) whose assets
are of a type that would satisfy Section 4.10(b)(iv) and (b) would be a
Restricted Subsidiary of the Issuer immediately following the exchange);
PROVIDED that (i) the assets received by the Issuer or a Restricted Subsidiary
of the Issuer in any such exchange in the good faith reasonable judgment of the
Issuer's Board of Directors will immediately constitute, be a part of, or be
used in a Permitted Business by the Issuer or its Restricted Subsidiaries, (ii)
the Issuer's Board of Directors has determined that the terms of any such
exchange are fair and reasonable and (iii) any cash or Cash Equivalents received
by the Issuer or any Restricted Subsidiary of the Issuer in any such exchange
will be treated as Net Proceeds from an Asset Sale and applied in accordance
with this Section 4.10.
(b) Within 365 days after the receipt of any Net Proceeds
from an Asset Sale, the Issuer may apply such Net Proceeds at its option:
(i) to repay Indebtedness under (x) the Credit
Facilities or (y) Unsubordinated Indebtedness of the Issuer or
any Restricted Subsidiary secured by such assets or (z)
Indebtedness of a Foreign Subsidiary which is a non-Guarantor
Restricted Subsidiary from the proceeds of an Asset Sale by such
Foreign Subsidiary;
62
(ii) to acquire all or substantially all of the assets
of, or a majority of the Voting Stock of, another Permitted
Business;
(iii) to make a capital expenditure in or that is used
or useful in a Permitted Business; or
(iv) to acquire other long-term assets in or that are
used or useful in a Permitted Business.
Pending the final application of any such Net Proceeds, the
Issuer may temporarily reduce revolving credit borrowings or otherwise invest
such Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or
invested as provided in Section 4.10(b) will constitute "EXCESS PROCEEDS." When
the aggregate amount of Excess Proceeds exceeds $15.0 million, the Issuer will
make an offer (an "ASSET SALE OFFER") using the procedures set forth in Section
3.08 to all Holders of Notes and all holders of other Indebtedness that is PARI
PASSU with the Notes containing provisions similar to those set forth in this
Indenture with respect to offers to purchase with the proceeds of sales of
assets to purchase the maximum principal amount of Notes and such other PARI
PASSU Indebtedness that may be purchased out of the Excess Proceeds. The offer
price in any Asset Sale Offer will be equal to 100% of principal amount (or 100%
of the accreted value thereof, in the case of Indebtedness sold at a discount,
as the case may be) plus accrued and unpaid interest and Liquidated Damages, if
any, to the date of purchase, and will be payable in cash. If any Excess
Proceeds remain after consummation of an Asset Sale Offer, the Issuer may use
such Excess Proceeds for any purpose not otherwise prohibited by this Indenture.
If the aggregate principal amount of Notes and the aggregate principal amount
(or accreted value, as applicable) of such other PARI PASSU Indebtedness
tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes and such other PARI PASSU Indebtedness to be
purchased on a pro rata basis based on the principal amount of Notes and the
aggregate principal amount (or accreted value, as applicable) of such other PARI
PASSU Indebtedness tendered. Upon completion of each Asset Sale Offer, the
amount of Excess Proceeds shall be reset at zero.
Section 4.11. TRANSACTIONS WITH AFFILIATES.
(a) The Issuer will not, and will not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (each, an "AFFILIATE TRANSACTION"), unless:
(i) such Affiliate Transaction is on terms, taken as
a whole, that are no less favorable to the Issuer or the relevant
Restricted Subsidiary than those that would have been obtained in
a comparable transaction by the Issuer or such Restricted
Subsidiary with an unrelated Person; and
(ii) the Issuer delivers to the Trustee:
63
(A) with respect to any Affiliate Transaction
or series of related Affiliate Transactions involving
aggregate consideration in excess of $5.0 million, a
resolution of the Board of Directors of the Issuer set
forth in an Officers' Certificate certifying that such
Affiliate Transaction complies with this Section 4.11 and
that such Affiliate Transaction has been approved by a
majority of the disinterested members of the Board of
Directors of the Issuer; and
(B) with respect to any Affiliate Transaction
or series of related Affiliate Transactions involving
aggregate consideration in excess of $10.0 million, an
opinion as to the fairness to the Issuer or such
Restricted Subsidiary of such Affiliate Transaction from
a financial point of view issued by an accounting,
appraisal or investment banking firm of national
standing.
(b) The following items shall not be deemed to be Affiliate
Transactions and, therefore, will not be subject to the provisions of Section
4.11(a):
(i) transactions between or among the Issuer and/or
its Restricted Subsidiaries;
(ii) payment of reasonable directors fees to Persons
who are not otherwise Affiliates of the Issuer and the provision
and payment of customary indemnification to directors and
officers of the Issuer;
(iii) Restricted Payments that are permitted by the
provisions of Section 4.07;
(iv) payments to GTCR pursuant to the Professional
Services Agreement, as in effect on the date of this Indenture,
or any amendment, modification or replacement to such agreement
(so long as the amendment, modification or replacement is not
disadvantageous to the Holders of the Notes in any respect);
(v) transactions pursuant to the Senior Management
Agreements or Equity Purchase Agreement, in each case, as in
effect on the date of this Indenture;
(vi) loans and advances to officers, directors or
employees of the Issuer or its Restricted Subsidiaries made in
the ordinary course of business in an amount that, when taken
together with all other loans and advances made pursuant to this
Section 4.11(b)(vi) and then outstanding, does not exceed $2.5
million;
(vii) any issuance of securities, or other payments,
awards or grants in cash, securities or otherwise pursuant to, or
the funding of, employment arrangements, stock options and stock
ownership plans approved by the Issuer's Board of Directors;
64
(viii) any employment agreement or other employee
compensation arrangements entered into by the Issuer or any of
its Restricted Subsidiaries in the ordinary course of business;
(ix) tax sharing agreements among the Issuer and its
Restricted Subsidiaries;
(x) transactions with a Person that is an Affiliate of
the Issuer solely because the Issuer or any of its Restricted
Subsidiaries owns Capital Stock in such Person;
(xi) any sale or issuance of Capital Stock (other than
Disqualified Stock) of the Issuer to Affiliates of the Issuer or
its Restricted Subsidiaries; and
(xii) transactions effected pursuant to any agreement
described in the section of the Offering Memorandum entitled
"Certain Relationships and Related Transactions" as the same are
in effect on the date of this Indenture or any amendment,
modification or replacement to such agreement (so long as the
amendment, modification or replacement is not disadvantageous to
the Holders of the Notes in any respect).
Section 4.12. LIENS.
The Issuer will not, and will not permit any of its Restricted
Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or
become effective any Lien of any kind securing Indebtedness or Attributable Debt
(other than Permitted Liens) upon any of their property or assets, now owned or
hereafter acquired, unless all payments due under this Indenture and the Notes
are secured on an equal and ratable basis with the obligations so secured until
such time as such obligations are no longer secured by a Lien.
Section 4.13. [INTENTIONALLY OMITTED]
Section 4.14. OFFER TO REPURCHASE UPON A CHANGE OF CONTROL.
(a) If a Change of Control occurs, each Holder of Notes will
have the right to require the Issuer to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of that Holder's Notes pursuant to an
offer by the Issuer (a "CHANGE OF CONTROL OFFER") at an offer price (a "CHANGE
OF CONTROL PAYMENT") in cash equal to 101% of the aggregate principal amount of
Notes repurchased plus accrued and unpaid interest and Liquidated Damages, if
any, thereon, to the date of purchase; PROVIDED, HOWEVER, that notwithstanding
the occurrence of a Change of Control, the Issuer will not be obligated to offer
to purchase or purchase the Notes pursuant to this Section 4.14 if, prior to the
time that the Issuer would be required to offer to purchase the Notes as a
result of such Change of Control, the Issuer has mailed the requisite
irrevocable notice to redeem all the outstanding Notes pursuant to Section 3.03
and redeems all the Notes in accordance with such notice. Within 30 days
following any Change of Control, the Issuer will mail a notice to each Holder
describing the transaction or transactions that constitute the Change of Control
and offering to repurchase Notes on a date (the "CHANGE OF CONTROL PAYMENT
DATE") specified in such notice, which date shall be no earlier than 30 days and
no later
65
than 60 days from the date such notice is mailed, pursuant to the procedures
described in Section 3.08.
(b) On the Change of Control Payment Date, the Issuer will,
to the extent lawful:
(i) accept for payment all Notes or portions thereof
properly tendered pursuant to the Change of Control Offer;
(ii) deposit with the Paying Agent an amount equal to
the Change of Control Payment in respect of all Notes or portions
thereof so tendered; and
(iii) deliver or cause to be delivered to the Trustee
the Notes so accepted together with an Officers' Certificate
stating the aggregate principal amount of Notes or portions
thereof being purchased by the Issuer.
(c) The Paying Agent will promptly mail to each Holder of
Notes so tendered the Change of Control Payment for such Notes, and the Trustee
will promptly authenticate and mail (or cause to be transferred by book entry)
to each Holder a new Note equal in principal amount to any unpurchased portion
of the Notes surrendered, if any; PROVIDED that each such new Note will be in a
principal amount of $1,000 or an integral multiple thereof.
(d) The Issuer will publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
(e) Notwithstanding anything to the contrary in this Section
4.14, the Issuer will not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Section 4.14 and all other provisions of this Indenture applicable to a
Change of Control Offer made by the Issuer and purchases all Notes validly
tendered and not withdrawn under such Change of Control Offer.
Section 4.15. [INTENTIONALLY OMITTED]
Section 4.16. DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES.
The Board of Directors of the Issuer may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if that designation would not cause
a Default. If a Restricted Subsidiary is designated as an Unrestricted
Subsidiary, the aggregate fair market value of all outstanding Investments owned
by the Issuer and its Restricted Subsidiaries in the Subsidiary so designated
will be deemed to be a Restricted Investment made as of the time of such
designation and that designation will only be permitted if such Investment would
be permitted at that time and if such Restricted Subsidiary otherwise meets the
definition of an Unrestricted Subsidiary. The Board of Directors of the Issuer
may at any time designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; PROVIDED that such designation shall be deemed to be an incurrence
of Indebtedness by a Restricted Subsidiary of the Issuer of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (i) such Indebtedness is permitted under Section 4.09, calculated
on a pro forma basis as if such designation had occurred
66
at the beginning of the four-quarter reference period; and (ii) no Default or
Event of Default would be in existence following such designation.
Section 4.17. PAYMENTS FOR CONSENT.
DigitalNet Holdings and the Issuer will not, and the Issuer will
not permit any of its Restricted Subsidiaries to, directly or indirectly, pay or
cause to be paid any consideration to or for the benefit of any Holder of Notes
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Notes unless such consideration is
offered to be paid and is paid to all Holders of the Notes that consent, waive
or agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement.
Section 4.18. ADDITIONAL NOTE GUARANTEES.
(a) If the Issuer or any of its Restricted Subsidiaries
acquires or creates another Domestic Subsidiary on or after the date of this
Indenture, then that newly acquired or created Domestic Subsidiary must become a
Guarantor and execute a supplemental indenture in the form of Exhibit F within
30 Business Days of the date on which it was acquired or created. If any of the
Issuer's existing or future Foreign Subsidiaries Guarantee any other
Indebtedness of the Issuer or any Domestic Subsidiary, then that Foreign
Subsidiary must become a Guarantor and execute a supplemental indenture in the
form of Exhibit F hereto within 30 Business Days of the date on which it enters
into such Guarantee. If DigitalNet Holdings acquires or creates any Subsidiary
and such Subsidiary acquires any Equity Interests of the Issuer, then DigitalNet
Holdings must cause such Subsidiary to become a Guarantor (on terms identical to
the Guarantee of DigitalNet Holdings) and execute a supplemental indenture in
the form of Exhibit F hereto 30 Business Days of the date on which it acquired
such Equity Interests of the Issuer.
(b) Notwithstanding the preceding paragraph, any Note
Guarantee executed by a Subsidiary of the Issuer may provide by its terms that
it will be automatically and unconditionally released and discharged under the
circumstances described under Section 10.05 hereof.
Section 4.19. SALE AND LEASEBACK TRANSACTIONS.
(a) The Issuer will not, and will not permit any of its
Restricted Subsidiaries to, enter into any sale and leaseback transaction;
PROVIDED that the Issuer or any Restricted Subsidiary may enter into a sale and
leaseback transaction if:
(i) the Issuer or that Restricted Subsidiary, as
applicable, could have incurred Indebtedness in an amount equal
to the Attributable Debt relating to such sale and leaseback
transaction under Section 4.09;
(ii) the gross cash proceeds of that sale and leaseback
transaction are at least equal to the fair market value, as
determined in good faith by the Board of Directors of the Issuer
and set forth in an Officers' Certificate delivered to the
Trustee, of the property that is the subject of that sale and
leaseback transaction; and
67
(iii) the transfer of assets in that sale and leaseback
transaction is permitted by, and the Issuer applies the proceeds
of such transaction in compliance, with Section 4.10.
ARTICLE FIVE
SUCCESSORS
Section 5.01. MERGER, CONSOLIDATION OR SALE OF ASSETS.
(a) The Issuer may not, directly or indirectly: (1)
consolidate or merge with or into another Person (whether or not the Issuer is
the surviving corporation); or (2) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties or assets of the Issuer
and its Subsidiaries taken as a whole, in one or more related transactions, to
another Person; unless:
(i) either: (A) the Issuer is the surviving
corporation; or (B) the Person formed by or surviving any such
consolidation or merger (if other than the Issuer) or to which
such sale, assignment, transfer, conveyance or other disposition
shall have been made is a corporation organized or existing under
the laws of the United States, any state thereof or the District
of Columbia;
(ii) the Person formed by or surviving any such
consolidation or merger (if other than the Issuer) or the Person
to which such sale, assignment, transfer, conveyance or other
disposition shall have been made assumes all the obligations of
the Issuer under the Notes, this Indenture and the Registration
Rights Agreement pursuant to agreements reasonably satisfactory
to the Trustee;
(iii) immediately after such transaction no Default or
Event of Default exists; and
(iv) the Issuer or the Person formed by or surviving
any such consolidation or merger (if other than the Issuer), or
to which such sale, assignment, transfer, conveyance or other
disposition shall have been made will, on the date of such
transaction after giving pro forma effect thereto and any related
financing transactions as if the same had occurred at the
beginning of the applicable four-quarter period, either (A) be
permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in
Section 4.09(a) or (B) have a Fixed Charge Coverage Ratio that
exceeds the Issuer's Fixed Charge Coverage Ratio for the
applicable four-quarter period determined without giving pro
forma effect to such transaction.
(b) The Issuer may not, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related
transactions, to any other Person. This Section 5.01 will not apply to (a) a
sale, assignment, transfer, conveyance or other disposition of assets between or
among the Issuer and any of its Restricted Subsidiaries or (b) a merger of the
Issuer into an Affiliate of the Issuer solely for the purpose and with the sole
effect of reincorporating the Issuer in another jurisdiction.
68
Section 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Issuer in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which the Issuer is
merged or to which such sale, assignment, transfer, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, conveyance or other
disposition, the provisions of this Indenture referring to the "Issuer" shall
refer instead to the successor corporation and not to the Issuer), and may
exercise every right and power of, the Issuer under this Indenture with the same
effect as if such successor Person had been named as the Issuer herein;
PROVIDED, HOWEVER, that the predecessor Issuer shall not be relieved from the
obligation to pay the principal of and interest and Liquidated Damages, if any,
on the Notes except in the case of a sale, assignment, transfer, conveyance or
other disposition of all of the Issuer's assets that meets the requirements of
Section 5.01 hereof.
ARTICLE SIX
DEFAULTS AND REMEDIES
Section 6.01. EVENTS OF DEFAULT.
(a) Each of the following is an "EVENT OF DEFAULT":
(i) default for 30 days in the payment when due of
interest on, or Liquidated Damages with respect to, the Notes;
(ii) default in payment when due of the principal of,
or premium, if any, on the Notes;
(iii) failure by the Issuer or any of the Issuer's
Restricted Subsidiaries to comply with the provisions described
under Sections 4.10, 4.14, 5.01 or 10.04;
(iv) failure by DigitalNet Holdings, any Subsidiary of
DigitalNet Holdings that owns Equity Interests of the Issuer, the
Issuer or any of the Issuer's Restricted Subsidiaries for 30 days
after notice to comply with any of the other agreements in this
Indenture;
(v) default under any mortgage, indenture or
instrument under which there may be issued or by which there may
be secured or evidenced any Indebtedness for money borrowed by
the Issuer or any of its Restricted Subsidiaries (or the payment
of which is guaranteed by DigitalNet Holdings, any Subsidiary of
DigitalNet Holdings that owns Equity Interests of the Issuer, the
Issuer or any of its Restricted Subsidiaries) whether such
Indebtedness or Guarantee now exists, or is created after the
date of this Indenture, if that default:
(A) is caused by a failure to pay at maturity
(after giving effect to the expiration of any applicable
grace period, a "PAYMENT DEFAULT"); or
69
(B) results in the acceleration of such
Indebtedness prior to its express maturity,
and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of
which has been so accelerated, aggregates $10.0 million or more;
(vi) failure by DigitalNet Holdings, any Subsidiary of
DigitalNet Holdings that owns Equity Interests of the Issuer, the
Issuer or any of its Restricted Subsidiaries to pay final
judgments (other than judgments which are covered by enforceable
insurance policies issued by solvent carriers) aggregating in
excess of $10.0 million, which judgments are not paid, discharged
or stayed for a period of 60 days;
(vii) except as permitted by this Indenture, any Note
Guarantee shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in
full force and effect or any Guarantor, or any Person acting on
behalf of any Guarantor, shall deny or disaffirm its obligations
under its Note Guarantee;
(viii) DigitalNet Holdings, any Subsidiary of DigitalNet
Holdings that owns Equity Interests of the Issuer, the Issuer,
any Subsidiary Guarantor or any Significant Subsidiary of the
Issuer pursuant to or within the meaning of Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for
relief against it in an involuntary case,
(C) makes a general assignment for the benefit
of its creditors, or
(D) consents to the appointment of a custodian
of any such entity or for all or substantially all of its
property; and
(ix) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against DigitalNet Holdings, any
Subsidiary of DigitalNet Holdings that owns Equity Interests of
the Issuer, the Issuer, any Subsidiary Guarantor or any
Significant Subsidiary of the Issuer, in an involuntary case; or
(B) appoints a custodian of DigitalNet Holdings, any
Subsidiary of DigitalNet Holdings that owns Equity Interests of
the Issuer, the Issuer, any Subsidiary Guarantor or any
Significant Subsidiary of the Issuer or for all or
70
substantially all of the property of DigitalNet Holdings, any
Subsidiary of DigitalNet Holdings that owns Equity Interests of
the Issuer, the Issuer, any Subsidiary Guarantor or any
Significant Subsidiary of the Issuer, or
(C) orders the liquidation of DigitalNet Holdings, any
Subsidiary of DigitalNet Holdings that owns Equity Interests of
the Issuer, the Issuer, any Subsidiary Guarantor or any
Significant Subsidiary of the Issuer;
and the order or decree remains unstayed and in effect for 60
consecutive days.
Section 6.02. ACCELERATION.
(a) In the case of an Event of Default specified in clauses
(viii) or (ix) of Section 6.01 hereof, with respect to DigitalNet Holdings, any
Subsidiary of DigitalNet Holdings that owns Equity Interests of the Issuer, the
Issuer, any Subsidiary Guarantor or any Significant Subsidiary of the Issuer,
all outstanding Notes will become due and payable immediately without further
action or notice. If any other Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately by
notice in writing to the Issuer specifying the Event of Default.
(b) In the case of any Event of Default occurring by reason
of any willful action or inaction taken or not taken by or on behalf of the
Issuer with the intention of avoiding payment of the premium that the Issuer
would have had to pay if the Issuer then had elected to redeem the Notes
pursuant to Section 3.07(a) hereof, an equivalent premium shall also become and
be immediately due and payable to the extent permitted by law upon the
acceleration of the Notes. If an Event of Default occurs during any time that
the Notes are outstanding, by reason of any willful action (or inaction) taken
(or not taken) by or on behalf of the Issuer with the intention of avoiding the
prohibition on redemption of the Notes, then the premium specified in Section
3.07(b) hereof shall also become immediately due and payable to the extent
permitted by law upon the acceleration of the Notes.
Section 6.03. OTHER REMEDIES.
(a) If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal,
premium, if any, interest, and Liquidated Damages, if any, with respect to, the
Notes or to enforce the performance of any provision of the Notes or this
Indenture.
(b) The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
71
Section 6.04. WAIVER OF PAST DEFAULTS.
(a) Holders of a majority in principal amount of the then
outstanding Notes by notice to the Trustee may on behalf of the Holders of all
of the Notes waive any existing Default or Event of Default and its consequences
hereunder, except a continuing Default or Event of Default in the payment of
interest or Liquidated Damages on, or the principal of, the Notes; PROVIDED,
HOWEVER that the Holders of a majority in principal amount of the then
outstanding Notes may rescind an acceleration pursuant to Section 6.02 hereof,
and its consequences.
(b) The Issuer shall deliver to the Trustee an Officers'
Certificate stating that the requisite percentage of Holders have consented to
any such waiver and attaching copies of such consents. In case of any such
waiver, the Issuer, the Trustee and the Holders shall be restored to their
former positions and rights hereunder and under the Notes, respectively. This
Section 6.04 and Section 9.02 shall be in lieu of Section 316(a)(1)(B) of the
TIA and such Section 316(a)(1)(B) of the TIA is hereby expressly excluded from
this Indenture and the Notes, as permitted by the TIA. Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
Section 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee, subject to Section 7.01,
determines may be unduly prejudicial to the rights of other Holders of Notes or
that may involve the Trustee in personal liability.
Section 6.06. LIMITATION ON SUITS.
(a) A Holder may not pursue any remedy with respect to this
Indenture or the Notes unless:
(i) the Holder gives the Trustee written notice of a
continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount
of outstanding Notes make a written request to the Trustee to pursue
the remedy;
(iii) such Holder or Holders offer and, if requested, provide
to the Trustee security and indemnity satisfactory to the Trustee
against any costs, liability or expense that might be incurred by it
in connection with the request or direction;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
72
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Notes do not give the
Trustee a direction that is inconsistent with the request.
(b) A Holder of a Note may not use this Indenture to
prejudice the rights of another Holder of a Note or to obtain a preference or
priority over another Holder of a Note.
Section 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Note to receive payment of principal, premium, if any,
interest on, and Liquidated Damages, if any, with respect to, the Note, on or
after the respective due dates expressed in the Note (including in connection
with an offer to purchase), or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
Section 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a)(i) or (a)(ii)
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Issuer for the whole
amount of principal of, premium, if any, interest, and Liquidated Damages, if
any, remaining unpaid on the Notes and interest on overdue principal and
premium, if any, and, to the extent lawful, interest and Liquidated Damages, if
any, and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
Section 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Issuer
or any Guarantor (or any other obligor upon the Notes), its creditors or its
property and shall be entitled and empowered to collect, receive and distribute
any money or other securities or property payable or deliverable on any such
claims and any custodian in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof. To the extent that
the payment of any such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall
73
be deemed to authorize the Trustee to authorize or consent to or accept or adopt
on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. PRIORITIES.
(a) If the Trustee collects any money pursuant to this
Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation, expense
and liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, interest and Liquidated Damages, if
any, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal, premium, if any,
interest, and Liquidated Damages, if any, respectively; and
Third: to the Issuer or to such party as a court of competent
jurisdiction shall direct.
(b) The Trustee may fix a record date and payment date for
any payment to Holders of Notes pursuant to this Section 6.10.
Section 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of more than ten
percent in principal amount of the then outstanding Notes.
ARTICLE SEVEN
TRUSTEE
Section 7.01. DUTIES OF TRUSTEE. Except to the extent, if any, provided
otherwise in the Trust Indenture Act of 1939 (as from time to time in effect):
(a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
74
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss,
costs, liability or expense that might be incurred by it in connection with the
request or direction.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
Section 7.02. CERTAIN RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document
believed by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the advice of such counsel or any Opinion
75
of Counsel shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Issuer shall be sufficient if
signed by an Officer of the Issuer.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction.
(g) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of such event is sent to the
Trustee in accordance with Section 12.02 hereof, and such notice references the
Notes.
Section 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may become a creditor of, or otherwise deal
with, the Issuer or any of its Affiliates with the same rights it would have if
it were not Trustee. However, in the event that the Trustee acquires any
conflicting interest as described in the Trust Indenture Act of 1939 (as in
effect at such time), it must eliminate such conflict within 90 days, apply to
the SEC for permission to continue as trustee or resign. Any Agent may do the
same with like rights and duties. The Trustee is also subject to Sections 7.10
and 7.11 hereof.
Section 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, it shall not be
accountable for the Issuer's use of the proceeds from the Notes or any money
paid to the Issuer or upon the Issuer's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
76
Section 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to Holders of Notes a notice
of the Default or Event of Default within 90 days after it occurs. Except in the
case of a Default or Event of Default in payment of principal, premium, interest
or Liquidated Damages on any Note, the Trustee may withhold the notice if and so
long as it determines in good faith that withholding the notice is not adverse
to the interests of the Holders of the Notes.
Section 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
(a) Within 60 days after each May 15 beginning with the May
15 following the date hereof, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA Section 313(a) (but if no event described
in TIA Section 313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also shall comply
with TIA Section 313(b)(2). The Trustee shall also transmit by mail all reports
as required by TIA Section 313(c).
(b) A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Issuer and filed with the SEC and each
stock exchange on which the Notes are listed in accordance with TIA Section
313(d). The Issuer shall promptly notify the Trustee when the Notes are listed
on any stock exchange or any delisting thereof.
Section 7.07. COMPENSATION AND INDEMNITY.
(a) The Issuer shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder in accordance with a written schedule provided by the Trustee to the
Issuer. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuer shall reimburse the
Trustee promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by it in addition to the compensation for its
services. Such expenses shall include the reasonable compensation, disbursements
and expenses of the Trustee's agents and counsel.
(b) The Issuer shall indemnify the Trustee against any and
all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the Issuer (including this Section 7.07) and defending itself against any claim
(whether asserted by either of the Issuer or any Holder or any other person) or
liability in connection with the exercise or performance of any of its powers or
duties hereunder, except to the extent any such loss, liability or expense may
be attributable to its negligence, bad faith or willful misconduct. The Trustee
shall notify the Issuer promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of
its obligations hereunder. The Issuer shall defend the claim and the Trustee
shall cooperate in the defense. The Issuer need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
77
(c) The obligations of the Issuer under this Section 7.07
shall survive the satisfaction and discharge of this Indenture and resignation
of removal of the Trustee.
(d) To secure the Issuer's payment obligations in this
Section, the Trustee shall have a Lien prior to the Notes on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture and resignation or removal of the
Trustee.
(e) When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(a)(viii) and (ix) hereof
occurs, the expenses and the compensation for the services (including the fees
and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
(f) The Trustee shall comply with the provisions of TIA
Section 313(b)(2) to the extent applicable.
Section 7.08. REPLACEMENT OF TRUSTEE.
(a) A resignation or removal of the Trustee and appointment
of a successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Issuer. The Holders
of a majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Issuer in writing. The Issuer may
remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10 hereof;
(ii) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(iii) a custodian or public officer takes charge of the Trustee
or its property; or
(iv) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Issuer shall promptly
appoint a successor Trustee. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount of the then outstanding
Notes may appoint a successor Trustee to replace the successor Trustee appointed
by the Issuer.
(d) If a successor Trustee does not take office within 30
days after the retiring Trustee resigns or is removed, the retiring Trustee, the
Issuer, or the Holders of Notes of at least 10% in principal amount of the then
outstanding Notes may petition at the expense of the Issuer any court of
competent jurisdiction for the appointment of a successor Trustee.
78
(e) If the Trustee, after written request by any Holder who
has been a Holder for at least six months, fails to comply with Section 7.10,
such Holder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
(f) A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Issuer. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, PROVIDED all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided for in Section
7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Issuer's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
Section 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
Person, the successor Person without any further act shall be the successor
Trustee.
Section 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee powers, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $150.0 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein. The Trustee hereby waives any right to set-off any claim that it may
have against the Issuer in any capacity (other than as Trustee and Paying Agent)
against any of the assets of the Issuer held by the Trustee; PROVIDED, HOWEVER,
that if the Trustee is or becomes a lender of any other Indebtedness permitted
hereunder to be PARI PASSU with the Notes, then such waiver shall not apply to
the extent of such Indebtedness.
ARTICLE EIGHT
DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Issuer may, at the option of the Board of Directors evidenced
by a resolution set forth in an Officers' Certificate, at any time, elect to
have either Section 8.02 or 8.03 hereof
79
be applied to all outstanding Notes upon compliance with the conditions set
forth below in this Article Eight.
Section 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Issuer's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Issuer shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding Notes
and all obligations of the Guarantors shall be deemed to have been discharged
with respect to their obligations under the Note Guarantees on the date the
conditions set forth below are satisfied (hereinafter, "LEGAL DEFEASANCE"). For
this purpose, Legal Defeasance means that the Issuer and the Guarantors shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes and Note Guarantees, respectively, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 8.05 hereof and the
other Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such Notes and this Indenture (and the
Trustee, on demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of outstanding Notes to receive
solely from the trust fund described in Section 8.04 hereof, and as more fully
set forth in such Section, payments in respect of the principal of, premium, if
any, interest and Liquidated Damages, if any, on such Notes when such payments
are due,
(b) the Issuer's obligations with respect to such Notes under
Article 2 concerning issuing temporary Notes, registration of Notes and
mutilated, destroyed, lost or stolen Notes and the Issuer's obligations under
Section 4.02 hereof,
(c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Issuer's obligations in connection therewith and
(d) this Article 8.
Subject to compliance with this Article 8, the Issuer may
exercise its option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.
Section 8.03. COVENANT DEFEASANCE.
Upon the Issuer's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Issuer shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from its obligations contained in Sections 4.03, 4.04(a), 4.05, 4.07, 4.08,
4.09, 4.10, 4.11, 4.12, 4.14, 4.16, 4.17, 4.18 and 4.19 hereof and the operation
of Section 5.01(a)(iv) with respect to the outstanding Notes on and after the
date the conditions set forth in Section 8.04 are satisfied (hereinafter,
"COVENANT DEFEASANCE"), and the Notes shall thereafter be deemed not
"outstanding" for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
specified Sections, but shall continue to be deemed "outstanding" for all other
purposes hereunder (it being understood that such Notes shall not be deemed
outstanding for accounting purposes). For this
80
purpose, Covenant Defeasance means that, with respect to the outstanding Notes,
the Issuer and the Guarantors may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
specified Section, whether directly or indirectly, by reason of any reference
elsewhere herein to any such specified Section or by reason of any reference in
any such specified Section to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Notes shall be unaffected thereby. In
addition, upon the Issuer's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, Sections 6.01(a)(iii) through (vii) shall not
constitute Events of Default.
Section 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes:
(i) the Issuer must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Notes, cash in U.S.
dollars, non-callable Government Securities, or a combination thereof,
in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants to pay the principal
of, and interest and premium and Liquidated Damages, if any, on the
outstanding Notes on the Stated Maturity or on the applicable
redemption date, as the case may be, and the Issuer must specify
whether the Notes are being defeased to maturity or to a particular
redemption date;
(ii) in the case of Legal Defeasance, the Issuer shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable
to the Trustee confirming that (a) the Issuer has received from, or
there has been published by, the Internal Revenue Service a ruling or
(b) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the
Holders of the outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;
(iii) in the case of Covenant Defeasance, the Issuer shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable
to the Trustee confirming that the Holders of the outstanding Notes
will not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and will be subject
to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Covenant Defeasance
had not occurred;
(iv) no Default or Event of Default shall have occurred and be
continuing either: (a) on the date of such deposit; or (b) insofar as
Events of Default from bankruptcy or insolvency events are concerned,
at any time in the period ending on the 91st day after the date of
deposit;
81
(v) such Legal Defeasance or Covenant Defeasance will not
result in a breach or violation of, or constitute a default under, any
material agreement or instrument to which DigitalNet Holdings, the
Issuer or any of the Issuer's Subsidiaries is a party or by which
DigitalNet Holdings, the Issuer or any of the Issuer's Subsidiaries is
bound;
(vi) the Issuer must have delivered to the Trustee an Opinion
of Counsel to the effect that, assuming no intervening bankruptcy of
the Issuer or any Guarantor between the date of deposit and the 91st
day following the deposit and assuming that the Trustee and each
Holder is not an "insider" of the Issuer under applicable bankruptcy
law, after the 91st day following the deposit, the trust funds will
not be subject to the avoidance as a preference in bankruptcy or
insolvency of the Issuer, DigitalNet Holdings, any Subsidiary of
DigitalNet Holdings that owns Equity Interests of the Issuer or any
Subsidiary of the Issuer;
(vii) the Issuer must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Issuer with
the intent of preferring the Holders of Notes over the other creditors
of the Issuer with the intent of defeating, hindering, delaying or
defrauding creditors of the Issuer or others;
(viii) if the Notes are to be redeemed prior to their Stated
Maturity, the Issuer must deliver to the Trustee irrevocable
instructions to redeem all of the Notes on the specified redemption
date; and
(ix) the Issuer must deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the Legal Defeasance or the Covenant
Defeasance in this Indenture have been complied with.
Section 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
(a) Subject to Section 8.06 hereof, all money and
non-callable Government Securities (including the proceeds thereof) deposited
with the Trustee pursuant to Section 8.04 hereof in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Issuer acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium and Liquidated Damages, if
any, and interest, but such money need not be segregated from other funds except
to the extent required by law.
(b) The Issuer shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the cash or
non-callable Government Securities deposited pursuant to Section 8.04 hereof or
the principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the
outstanding Notes.
(c) Anything in this Article Eight to the contrary
notwithstanding, the Trustee shall deliver or pay to the Issuer from time to
time upon the request of the Issuer any money or non-callable Government
Securities held by it as provided in Section 8.04 hereof which, in the
82
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (which may
be the opinion delivered under Section 8.04(a) hereof), are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06. REPAYMENT TO THE ISSUER.
Subject to applicable escheat laws, any money deposited with the
Trustee or any Paying Agent, or then held by the Issuer, in trust for the
payment of the principal of, premium, if any, or interest on any Note and
remaining unclaimed for two years after such principal, and premium, if any, or
interest has become due and payable shall be paid to the Issuer on its request
or (if then held by the Issuer) shall be discharged from such trust; and the
Holder of such Note shall thereafter look only to the Issuer for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Issuer as trustee thereof, shall
thereupon cease.
Section 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance with Section
8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Issuer's obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or 8.03 hereof and, in the case of a Legal Defeasance,
the Guarantors' obligations under their respective Note Guarantees shall be
revised and reinstated as though no deposit had occurred pursuant to Section
8.02 hereof, in each case until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; PROVIDED, HOWEVER, that, if the Issuer makes any
payment of principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Issuer shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE NINE
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.
(a) Notwithstanding Section 9.02 of this Indenture, the
Issuer, the Guarantors, and the Trustee may amend or supplement this Indenture
or the Notes without the consent of any Holder of a Note:
(i) to cure any ambiguity, omission, defect or
inconsistency;
(ii) to add additional Guarantees with respect to the
Notes;
(iii) to provide for uncertificated Notes in addition to
or in place of certificated Notes;
83
(iv) to provide for the assumption of the Issuer's or
any Guarantor's obligations to the Trustee and to Holders of
Notes in the case of a merger or consolidation or sale of all or
substantially all of the Issuer's or such Guarantor's assets;
(v) to make any change that would provide any
additional rights or benefits to the Holders of Notes or that
does not adversely affect the legal rights under this Indenture
of any such Holder;
(vi) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the
Trust Indenture Act;
(vii) to evidence and provide for the acceptance of the
appointment of a successor Trustee under this Indenture; or
(viii) to provide for the issuance of Additional Notes in
accordance with the terms of this Indenture.
(b) Upon the request of the Issuer accompanied by a
resolution of its Board of Directors authorizing the execution of any such
amended or supplemental Indenture, and upon receipt by the Trustee of any
documents requested under Section 7.02(b) hereof, the Trustee shall join with
the Issuer in the execution of any amended or supplemental Indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into such amended or supplemental Indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.02. WITH CONSENT OF HOLDERS OF NOTES.
(a) Except as otherwise provided in this Section 9.02, the
Issuer, the Guarantors and the Trustee may amend or supplement this Indenture or
the Notes with the consent of the Holders of at least a majority in principal
amount of the Notes then outstanding (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default
or Event of Default or compliance with any provision of this Indenture or the
Notes may be waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, Notes).
(b) The Issuer may, but shall not be obligated to, fix a
record date for the purpose of determining the Persons entitled to consent to
any indenture supplemental hereto. If a record date is fixed, the Holders on
such record date, or its duly designated proxies, and only such Persons, shall
be entitled to consent to such supplemental indenture, whether or not such
Holders remain Holders after such record date; PROVIDED that unless such consent
shall have become effective by virtue of the requisite percentage having been
obtained prior to the date which is 90 days after such record date, any such
consent previously given shall automatically and without further action by any
Holder be cancelled and of no further effect.
84
(c) Upon the request of the Issuer accompanied by a
resolution of its Board of Directors authorizing the execution of any such
amendment or supplement to this Indenture, and upon the filing with the Trustee
of evidence satisfactory to the Trustee of the consent of the Holders of Notes
as aforesaid, and upon receipt by the Trustee of the documents described in
Section 7.02 hereof, the Trustee shall join with the Issuer in the execution of
such amendment or supplement unless such amendment or supplement directly
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amendment or supplement.
(d) It shall not be necessary for the consent of the Holders
of Notes under this Section 9.02 to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such consent
approves the substance thereof.
(e) After an amendment, supplement or waiver under this
Section becomes effective, the Issuer shall mail to the Holders of Notes
affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Issuer to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
amendment, supplement or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of at least a majority in principal amount of Notes then outstanding
(including Additional Notes, if any) may waive compliance in a particular
instance by the Issuer with any provision of this Indenture, or the Notes.
However, without the consent of each Holder affected, an amendment or waiver
under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(i) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed
maturity of any Note or alter the provisions, or waive any
payment, with respect to the redemption of the Notes;
(iii) reduce the rate of or change the time for payment
of interest on any Note;
(iv) waive a Default or Event of Default in the payment
of principal of, or interest or premium, or Liquidated Damages,
if any, on the Notes (except a rescission of acceleration of the
Notes by the Holders of at least a majority in aggregate
principal amount of the Notes and a waiver of the payment default
that resulted from such acceleration);
(v) make any Note payable in money other than U.S.
dollars;
(vi) make any change in the provisions of this
Indenture relating to waivers of past Defaults or the rights of
Holders of Notes to receive payments of principal of, or interest
or premium or Liquidated Damages, if any, on the Notes;
(vii) release any Guarantor from any of its obligations
under its Note Guarantee or this Indenture, except in accordance
with the terms of this Indenture;
85
(viii) impair the right to institute suit for the
enforcement of any payment on or with respect to the Notes or the
Note Guarantees;
(ix) after an Asset Sale or a Change of Control has
occurred, amend, change or modify the obligation of the Issuer to
make and consummate an Asset Sale Offer with respect to any Asset
Sale in accordance with Section 4.10 or the obligation of the
Issuer to make and consummate a Change of Control Offer in the
event of a Change of Control in accordance with Section 4.14,
including, in each case, amending, changing or modifying any
definition relating thereto;
(x) except as otherwise permitted under Section 5.01,
consent to the assignment or transfer by the Issuer or any
Guarantor of any of their rights or obligations under this
Indenture; or
(xi) make any change in the preceding amendment and
waiver provisions.
Section 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in a document that complies with the TIA as then in effect.
Section 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05. NOTATION ON OR EXCHANGE OF NOTES.
(a) The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The Issuer
in exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
(b) Failure to make the appropriate notation or issue a new
Note shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment or supplement to this
Indenture or any Note authorized pursuant to this Article Nine if the amendment
or supplement does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. The Issuer may not sign an
86
amendment or supplemental Indenture or Note until its Board of Directors
approves it. In executing any amendment or supplement or Note, the Trustee shall
be entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon an Officers' Certificate and an Opinion of Counsel
stating that the execution of such amendment or supplement is authorized or
permitted by this Indenture.
ARTICLE TEN
NOTE GUARANTEES
Section 10.01. GUARANTEE.
(a) Subject to this Article Ten, each of the Guarantors
hereby, jointly and severally, and fully and unconditionally, guarantees to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, irrespective of the validity and enforceability
of, this Indenture, the Notes or the obligations of the Issuer hereunder or
thereunder, that: (i) the principal of, premium, if any, and interest and
Liquidated Damages, if any, on the Notes will be promptly paid in full when due,
whether at maturity, by acceleration, redemption or otherwise, and interest on
the overdue principal of, premium, if any, and interest and Liquidated Damages,
if any, on the Notes, if lawful (subject in all cases to any applicable grace
period provided herein), and all other obligations of the Issuer to the Holders
or the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (ii) in case
of any extension of time of payment or renewal of any Notes or any of such other
obligations, the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at Stated
Maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same immediately.
Each Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.
(b) The Guarantors hereby agree that, to the maximum extent
permitted under applicable law, their obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Issuer, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a Guarantor. Subject to Section 6.06
hereof, each Guarantor hereby waives diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy of the
Issuer, any right to require a proceeding first against the Issuer, protest,
notice and all demands whatsoever and covenants that this Note Guarantee shall
not be discharged except by complete performance of the obligations contained in
the Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court or
otherwise to return to the Issuer, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to any of the Issuer or
the Guarantors, any amount paid by any of them to the Trustee or such Holder,
this Note Guarantee, to the extent theretofore discharged, shall be reinstated
in full force and effect.
87
(d) Each Guarantor agrees that it shall not be entitled to
any right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each Guarantor further agrees that, as between the
Guarantors, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article Six hereof for the purposes of this Note Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any declaration of acceleration of such obligations as provided in
Article Six hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of this Note
Guarantee. The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under the Note Guarantee.
Section 10.02. LIMITATION ON GUARANTOR LIABILITY.
Each Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Note
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to such Note Guarantee. To effectuate the foregoing intention,
the Trustee, the Holders and the Guarantors hereby irrevocably agree that the
obligations of such Guarantor will be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such
Guarantor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this Article Ten, result in the obligations of such Guarantor
under its Note Guarantee not constituting a fraudulent transfer or conveyance.
Section 10.03. EXECUTION AND DELIVERY OF NOTE GUARANTEE.
(a) To evidence its Note Guarantee set forth in Section
10.01, each Guarantor hereby agrees that a notation of such Note Guarantee
substantially in the form included in Exhibit E shall be endorsed by an Officer
of such Guarantor on each Note authenticated and delivered by the Trustee and
that this Indenture shall be executed on behalf of such Guarantor by its
President or one of its Vice Presidents.
(b) Each Guarantor hereby agrees that its Note Guarantee set
forth in Section 10.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
(c) If an Officer whose signature is on this Indenture or on
the Note Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which a Note Guarantee is endorsed, the Note Guarantee
shall be valid nevertheless.
(d) The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Note
Guarantee set forth in this Indenture on behalf of the Guarantors.
88
(e) If required by Section 4.18 hereof, the Issuer shall
cause such Subsidiaries to execute supplemental indentures to this Indenture and
Note Guarantees in accordance with Section 4.18 hereof and this Article Ten, to
the extent applicable.
Section 10.04. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) DigitalNet Holdings or any Subsidiary of DigitalNet
Holdings that owns any Equity Interests of the Issuer may not sell or otherwise
dispose of all or substantially all of its assets to, or consolidate with or
merge with or into (whether or not DigitalNet Holdings or such Subsidiary of
DigitalNet Holdings is the surviving Person), another Person unless:
(i) immediately after giving effect to that
transaction, no Default or Event of Default exists; and
(ii) the Person acquiring the property in any such sale
or disposition or the Person formed by or surviving any such
consolidation or merger is organized or existing under the laws
of the United States, any state thereof or the District of
Columbia and assumes all the obligations of DigitalNet Holdings
or such Subsidiary of DigitalNet Holdings under this Indenture,
its Note Guarantee and the Registration Rights Agreement pursuant
to a supplemental indenture satisfactory to the Trustee.
(b) A Subsidiary Guarantor may not sell or otherwise dispose
of all or substantially all of its assets to, or consolidate with or merge with
or into (whether or not such Subsidiary Guarantor is the surviving Person),
another Person, other than the Issuer or another Subsidiary Guarantor, unless:
(i) immediately after giving effect to that
transaction, no Default or Event of Default exists; and
(ii) either:
(A) the Person acquiring the property in any such
sale or disposition or the Person formed by or surviving
any such consolidation or merger is organized or existing
under the laws of the United States, any state thereof or
the District of Columbia and assumes all the obligations
of that Subsidiary Guarantor under this Indenture, its
Note Guarantee and the Registration Rights Agreement
pursuant to a supplemental indenture satisfactory to the
Trustee; or
(B) such sale or other disposition complies with
Section 4.10 hereof, including the application of the Net
Proceeds therefrom.
(C) In case of any such consolidation, merger,
sale or conveyance governed by Section 10.04(b)(ii)(A),
upon the assumption by the successor Person, by
supplemental indenture, executed and delivered to the
Trustee and reasonably satisfactory in form to the
Trustee, of the Note Guarantee endorsed upon the Notes
and the due and punctual
89
performance of all of the covenants and conditions of
this Indenture to be performed by a Guarantor, such
successor Person shall succeed to and be substituted for
a Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor Person thereupon
may cause to be signed any or all of the Note Guarantees
to be endorsed upon all of the Notes issuable hereunder
which theretofore shall not have been signed by the
Issuer and delivered to the Trustee. All the Note
Guarantees so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Note
Guarantees theretofore and thereafter issued in
accordance with the terms of this Indenture as though all
of such Note Guarantees had been issued at the date of
the execution hereof.
In addition, none of DigitalNet Holdings, any Subsidiary of
DigitalNet Holdings that owns any Equity Interests of the Issuer or
any Restricted Subsidiary may, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related
transactions, to any other Person. This Section 10.04 will not apply
to (a) a sale, assignment, transfer, conveyance or other disposition
of assets between or among the Issuer and any of its Restricted
Subsidiaries or (b) a merger of the Issuer into an Affiliate of the
Issuer solely for the purpose and with the sole effect of
reincorporating the Issuer in another jurisdiction.
Section 10.05. RELEASE OF SUBSIDIARY GUARANTOR.
(a) Any Subsidiary Guarantor will be released and relieved of
any obligations under its Note Guarantee, (i) in connection with any sale or
other disposition of all or substantially all of the assets of that Subsidiary
Guarantor (including by way of merger or consolidation) to a Person that is not
(either before or after giving effect to such transaction) a Restricted
Subsidiary of the Issuer, if the sale or other disposition of all or
substantially all of the assets of that Subsidiary Guarantor complies with
Section 4.10 hereof; (ii) in connection with any sale of all of the Capital
Stock of a Subsidiary Guarantor to a Person that is not (either before or after
giving effect to such transaction) a Restricted Subsidiary of the Issuer, if the
sale of all such Capital Stock of that Subsidiary Guarantor complies with
Section 4.10; or (iii) if the Issuer designates any Restricted Subsidiary that
is a Subsidiary Guarantor as an Unrestricted Subsidiary in accordance with the
applicable provisions of this Indenture. Upon delivery by the Issuer to the
Trustee of an Officers' Certificate and an Opinion of Counsel to the effect that
one of the foregoing requirements has been satisfied and the conditions to the
release of a Guarantor under this Section 10.05 have been met, the Trustee shall
execute any documents reasonably required in order to evidence the release of
such Guarantor from its obligations under its Note Guarantee.
(b) Any Guarantor not released from its obligations under its
Note Guarantee shall remain liable for the full amount of principal of and
interest and Liquidated Damages, if any, on the Notes and for the other
obligations of any Guarantor under this Indenture as provided in this Article
Ten.
90
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
Section 11.01. SATISFACTION AND DISCHARGE.
(a) This Indenture will be discharged and will cease to be of
further effect as to all Notes issued thereunder, when:
(i) either:
(A) all Notes that have been authenticated
(except lost, stolen or destroyed Notes that have been
replaced or paid and Notes for whose payment money has
theretofore been deposited in trust and thereafter repaid
to the Issuer) have been delivered to the Trustee for
cancellation; or
(B) all Notes that have not been delivered to
the Trustee for cancellation have become due and payable
by reason of the mailing of a notice of redemption or
otherwise or will become due and payable within one year
and the Issuer or any Guarantor has irrevocably deposited
or caused to be deposited with the Trustee as trust funds
in trust solely for the benefit of the Holders, cash in
U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be
sufficient without consideration of any reinvestment of
interest, to pay and discharge the entire Indebtedness on
the Notes not delivered to the Trustee for cancellation
for principal, premium and Liquidated Damages, if any,
and accrued interest to the date of maturity or
redemption;
(ii) in the case of Section 11.01(a)(i)(B), no Default
or Event of Default shall have occurred and be continuing on the
date of any deposit referred to in clause (a)(i)(B) or shall
occur as a result of such deposit;
(iii) the Issuer or any Guarantor has paid or caused to
be paid all sums payable by it under this Indenture; and
(iv) in the case of Section 11.01(a)(i)(B), the Issuer
has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the
Notes at maturity or the redemption date, as the case may be.
(b) In addition, the Issuer must deliver an Officers'
Certificate and an Opinion of Counsel (which opinion may be subject to customary
assumptions and exclusions) to the Trustee stating that all conditions precedent
to satisfaction and discharge have been satisfied.
(c) Notwithstanding the above, the Trustee shall pay to the
Issuer from time to time upon its request any cash or Government Securities held
by it as provided in this section which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification delivered to the Trustee, are in excess of the amount thereof
91
that would then be required to be deposited to effect a satisfaction and
discharge under this Article Eleven.
Section 11.02. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 11.03 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee pursuant to Section 11.01 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Issuer acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium and Liquidated Damages, if
any, and interest, but such money need not be segregated from other funds except
to the extent required by law.
Section 11.03. REPAYMENT TO THE ISSUER.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Issuer, in trust for the payment of the principal of, premium and
Liquidated Damages, if any, or interest on any Note and remaining unclaimed for
two years after such principal, and premium or Liquidated Damages, if any, or
interest has become due and payable shall be paid to the Issuer on its request
or (if then held by the Issuer) shall be discharged from such trust; and the
Holder of such Note shall thereafter look only to the Issuer for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Issuer as trustee thereof, shall
thereupon cease.
ARTICLE TWELVE
MISCELLANEOUS
Section 12.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA Section 318(c), the imposed duties shall control.
Section 12.02. NOTICES.
(a) Any notice or communication by the Issuer or any
Guarantor, on the one hand, or the Trustee on the other hand, to the other is
duly given if in writing and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), telecopier or overnight air
courier guaranteeing next day delivery, to the others' address:
If to the Issuer or any Guarantor:
DigitalNet Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
92
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
With copies to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
If to the Trustee:
▇▇▇▇▇ Fargo Bank Minnesota, National Association
Corporate Trust Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
(b) The Issuer, the Guarantors or the Trustee, by notice to
the others may designate additional or different addresses for subsequent
notices or communications.
(c) All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; three Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
(d) Any notice or communication to a Holder shall be mailed
by first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on the
register kept by the Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA Section 313(c), to the extent required by
the TIA. Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders.
(e) If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given, whether or not the
addressee receives it.
(f) If the Issuer mails a notice or communication to Holders,
it shall mail a copy to the Trustee and each Agent at the same time.
93
Section 12.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Issuer, the Trustee, the Registrar and anyone else furnishing information
pursuant to TIA Section 312 shall have the protection of TIA Section 312(c).
Section 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
(a) Upon any request or application by the Issuer to the
Trustee to take any action under this Indenture, the Issuer shall furnish to the
Trustee:
(i) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied;
and
(ii) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of such
counsel (who may rely upon and Officers' Certificate as to matters of
fact), all such conditions precedent and covenants have been
satisfied.
Section 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
(a) Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA Section 314(a)(4)) shall comply with the
provisions of TIA Section 314(e) and shall include:
(i) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of such Person, he or
she has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been satisfied; and
(iv) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 12.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
94
Section 12.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No director, officer, employee, incorporator or stockholder of
the Issuer or any Guarantor, as such, shall have any liability for any
obligations of the Issuer or the Guarantors under the Notes, this Indenture, the
Note Guarantees or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. This waiver and release are part of the
consideration for issuance of the Notes.
Section 12.08. GOVERNING LAW.
THE LAWS OF THE STATE OF
NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
Section 12.09. CONSENT TO JURISDICTION.
Any legal suit, action or proceeding arising out of or based upon
this Indenture or the transactions contemplated hereby ("RELATED PROCEEDINGS")
may be instituted in the federal courts of the United States of America located
in the City of
New York or the courts of the State of
New York in each case
located in the City of
New York (collectively, the "SPECIFIED COURTS"), and each
party irrevocably submits to the non-exclusive jurisdiction of such courts in
any such suit, action or proceeding. Service of any process, summons, notice or
document by mail (to the extent allowed under any applicable statute or rule of
court) to such party's address set forth above shall be effective service of
process for any suit, action or other proceeding brought in any such court. The
parties irrevocably and unconditionally waive any objection to the laying of
venue of any suit, action or other proceeding in the Specified Courts and
irrevocably and unconditionally waive and agree not to plead or claim in any
such court has been brought in an inconvenient forum.
Section 12.10. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Issuer or any of its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
Section 12.11. SUCCESSORS.
All agreements of the Issuer in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors. All agreements of each Guarantor in this Indenture shall
bind its successors, except as otherwise provided in Section 10.04.
Section 12.12. SEVERABILITY.
In case any provision in this Indenture or the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
95
Section 12.13. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 12.14. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by the Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Issuer. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "ACT" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Issuer if made in the
manner provided in this Section 12.14. For purposes of this Indenture, any Act
by Holders which may be taken in writing may be taken by electronic means or as
otherwise reasonably acceptable to the Trustee.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such witness, notary or officer the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of authority. The fact and date of the execution of
any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) Notwithstanding anything to the contrary contained in
this Section 12.14, the principal amount and serial numbers of Notes held by any
Holder, and the date of holding the same, shall be proved by the register of the
Notes maintained by the Registrar as provided in Section 2.04 hereof.
(d) If the Issuer shall solicit from the Holders of the Notes
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Issuer may, at its option, by or pursuant to a resolution of its Board
of Directors, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Issuer shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such resolution, which shall be a date not earlier
than the date 30 days prior to the first solicitation of Holders generally in
connection therewith or the date of the most recent list of Holders forwarded to
the Trustee prior to such solicitation pursuant to Section 2.06 hereof and not
later than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or
96
after such record date, but only the Holders of record at the close of business
on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of the then outstanding
Notes have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the then outstanding Notes shall be computed as of such record date;
PROVIDED that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the
registration or transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Issuer in reliance thereon, whether or not notation of such action is made upon
such Note.
(f) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any particular Note may do
so itself with regard to all or any part of the principal amount of such Note or
by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
Section 12.15. BENEFIT OF INDENTURE.
Nothing, in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto, any Paying Agent, any
Registrar and its successors hereunder, and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 12.16. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
97
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the date first above written.
DIGITALNET, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: President, Chief Executive
Officer and Chairman of the Board
of Directors
DIGITALNET HOLDINGS, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: President, Chief Executive
Officer and Chairman of the Board
of Directors
DIGITAL GOVERNMENT SOLUTIONS, LLC
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
and Chairman of the Board of
Managers
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
Title: Corporate Trust Officer